[House Prints 110-6]
[From the U.S. Government Publishing Office]
FEDERAL RULES
OF
CIVIL PROCEDURE
____
WITH FORMS
____
DECEMBER 1, 2008
[GRAPHIC] [TIFF OMITTED] TONGRESS.15
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
110th Congress COMMITTEE PRINT No. 6
2nd Session
__________________________________________________________________
FEDERAL RULES
OF
CIVIL PROCEDURE
____
WITH FORMS
____
DECEMBER 1, 2008
[GRAPHIC] [TIFF OMITTED] TONGRESS.15
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
u.s. government printing office
washington : 2008
__________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
One Hundred Tenth Congress
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN,
WILLIAM D. DELAHUNT, Massachusetts California
ROBERT WEXLER, Florida CHRIS CANNON, Utah
LINDA T. SANCHEZ, California RIC KELLER, Florida
STEVE COHEN, Tennessee DARRELL ISSA, California
HANK JOHNSON, Georgia MIKE PENCE, Indiana
BETTY SUTTON, Ohio J. RANDY FORBES, Virginia
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
BRAD SHERMAN, California TOM FEENEY, Florida
TAMMY BALDWIN, Wisconsin TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
(ii)
?
?
?
FOREWORD
This document contains the Federal Rules of Civil Procedure together
with forms, as amended to December 1, 2008. The rules and forms have
been promulgated and amended by the United States Supreme Court pursuant
to law, and further amended by Acts of Congress. This document has been
prepared by the Committee in response to the need for an official up-to-
date document containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended a
reference to the date the amendment was promulgated and the date the
amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Civil Procedure, Judicial Conference
of the United States, prepared notes explaining the purpose and intent
of the amendments to the rules. The Committee Notes may be found in the
Appendix to Title 28, United States Code, following the particular rule
to which they relate.
Chairman, Committee on the Judiciary.
December 1, 2008.
(iii)
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
Sec. 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in the
United States district courts (including proceedings before magistrate
judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4648, eff. Dec. 1, 1988; amended Pub. L. 101-650, title III,
Sec. Sec. 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.)
Sec. 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of a
standing committee on rules of practice, procedure, and evidence under
subsection (a) of this section. Such standing committee shall review
each recommendation of any other committees so appointed and recommend
to the Judicial Conference rules of practice, procedure, and evidence
and such changes in rules proposed by a committee appointed under
subsection (a)(2) of this section as may be necessary to maintain
consistency and otherwise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be open to
the public, except when the committee so meeting, in open session and
with a majority present, determines that it is in the public interest
that all or part of the remainder of the meeting on that day shall be
closed to the public, and states the reason for so closing the meeting.
Minutes of each meeting for the transaction of business under this
chapter shall be maintained by the committee and made available to the
public, except that any portion of such minutes, relating to a closed
meeting and made available to the public, may contain such deletions as
may be necessary to avoid frustrating the purposes of closing the
meeting.
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded by
sufficient notice to enable all interested persons to attend.
(d) In making a recommendation under this section or under section
2072 or 2075, the body making that recommendation shall provide a
proposed rule, an explanatory note on the rule, and a written report
explaining the body's action, including any minority or other separate
views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988; amended Pub. L. 103-394, title I, Sec. 104(e),
Oct. 22, 1994, 108 Stat. 4110.)
Sec. 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later than
May 1 of the year in which a rule prescribed under section 2072 is to
become effective a copy of the proposed rule. Such rule shall take
effect no earlier than December 1 of the year in which such rule is so
transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except
that the Supreme Court shall not require the application of such rule to
further proceedings then pending to the extent that, in the opinion of
the court in which such proceedings are pending, the application of such
rule in such proceedings would not be feasible or would work injustice,
in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by Act of
Congress.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988.)
HISTORICAL NOTE
The Supreme Court prescribes rules of civil procedure for the
district courts pursuant to section 2072 of Title 28, United States
Code, as enacted by Title IV ``Rules Enabling Act'' of Pub. L. 100-702
(approved Nov. 19, 1988, 102 Stat. 4648), effective December 1, 1988.
Pursuant to section 2074 of Title 28, the Supreme Court transmits to
Congress (not later than May 1 of the year in which a rule prescribed
under section 2072 is to become effective) a copy of the proposed rule.
The rule takes effect no earlier than December 1 of the year in which
the rule is transmitted unless otherwise provided by law.
By act of June 19, 1934, ch. 651, 48 Stat. 1064 (subsequently 28
United States Code, Sec. 2072), the Supreme Court was authorized to
prescribe general rules of civil procedure for the district courts. The
rules, and subsequent amendments, were not to take effect until (1) they
had been first reported to Congress by the Attorney General at the
beginning of a regular session and (2) after the close of that session.
Under a 1949 amendment to 28 U.S.C., Sec. 2072, the Chief Justice of
the United States, instead of the Attorney General, reported the rules
to Congress. In 1950, section 2072 was further amended so that
amendments to the rules could be reported to Congress not later than May
1 each year and become effective 90 days after being reported. Effective
December 1, 1988, section 2072 was repealed and supplanted by new
sections 2072 and 2074, see first paragraph of Historical Note above.
The original rules, pursuant to act of June 19, 1934, were adopted
by order of the Court on December 20, 1937, transmitted to Congress by
the Attorney General on January 3, 1938, and became effective September
16, 1938 (308 U.S. 645; Cong. Rec., vol. 83, pt. 1, p. 13, Exec. Comm.
905; H. Doc. 460 and H. Doc. 588, 75th Cong.)
Rule 81(a)(6) was abrogated by order of the Court on December 28,
1939, transmitted to Congress by the Attorney General on January 3,
1940, effective April 3, 1941 (308 U.S. 642; Cong. Rec., vol. 86, pt. 1,
p. 14, Exec. Comm. 1152).
Further amendments were adopted by the Court by order dated December
27, 1946, transmitted to Congress by the Attorney General on January 3,
1947, and became effective March 19, 1948 (329 U.S. 839; Cong. Rec.,
vol. 93, pt. 1, p. 41, Exec. Comm. 32; H. Doc. 46 and H. Doc. 473, 80th
Cong.). The amendments affected Rules 6, 7, 12, 13, 14, 17, 24, 26, 27,
28, 33, 34, 36, 41, 45, 52, 54, 56, 58, 59, 60, 62, 65, 66, 68, 73, 75,
77, 79, 81, 84, and 86, and Forms 17, 20, 22, and 25.
Additional amendments were adopted by the Court by order dated
December 29, 1948, transmitted to Congress by the Attorney General on
January 3, 1949, and became effective October 20, 1949 (335 U.S. 919;
Cong. Rec., vol. 95, pt. 1, p. 94, Exec. Comm. 24; H. Doc. 33, 81st
Cong.). The amendments affected Rules 1, 17, 22, 24, 25, 27, 37, 45, 57,
60, 62, 65, 66, 67, 69, 72, 73, 74, 75, 76, 79, 81, 82, and 86, and
Forms 1, 19, 22, 23, and 27.
Amendment to Rule 81(a)(7) and new Rule 71A and Forms 28 and 29 were
adopted by the Court by order dated April 30, 1951, transmitted to
Congress on May 1, 1951, and became effective August 1, 1951 (341 U.S.
959; Cong. Rec., vol. 97, pt. 4, p. 4666, Exec. Comm. 414; H. Doc. 121,
82d Cong.).
Additional amendments were adopted by the Court by order dated April
17, 1961, transmitted to Congress by the Chief Justice on April 18,
1961, and became effective July 19, 1961 (368 U.S. 1009; Cong. Rec.,
vol. 107, pt. 5, p. 6524, Exec. Comm. 821). The amendments affected
Rules 25, 54, 62, and 86, and Forms 2 and 19.
Additional amendments were adopted by the Court by order dated
January 21, 1963, transmitted to Congress by the Chief Justice (374 U.S.
861; Cong. Rec., vol. 109, pt. 1, p. 1037, Exec. Comm. 267; H. Doc. 48,
88th Cong.), and became effective July 1, 1963, by order of the Court
dated March 18, 1963 (374 U.S. 861; Cong. Rec., vol. 109, pt. 4, p.
4639, Exec. Comm. 569; H. Doc. 48, pt. 2, 88th Cong.; see also H. Doc.
67, 88th Cong.). The amendments affected Rules 4, 5, 6, 7, 12, 13, 14,
15, 24, 25, 26, 28, 30, 41, 49, 50, 52, 56, 58, 71A, 77, 79, 81, and 86,
and Forms 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 18, 21, 22-A, and 22-
B, and added Forms 30, 31, and 32.
Additional amendments were adopted by the Court by order dated
February 28, 1966, transmitted to Congress by the Chief Justice on the
same day (383 U.S. 1029; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec.
Comm. 2094; H. Doc. 391, 89th Cong.), and became effective July 1, 1966.
The amendments affected Rules 1, 4, 8, 9, 12, 13, 14, 15, 17, 18, 19,
20, 23, 24, 26, 38, 41, 42, 43, 44, 47, 53, 59, 65, 68, 73, 74, 75, 81,
and 82, and Forms 2 and 15, and added Rules 23.1, 23.2, 44.1, and 65.1,
and Supplementary Rules A, B, C, D, E, and F for certain Admiralty and
Maritime claims. The amendments govern all proceedings in actions
brought after they became effective and also all further proceedings in
actions then pending, except to the extent that in the opinion of the
Court an application in a particular action then pending would not be
feasible or would work injustice, in which event the former procedure
applies.
In addition, Rule 6(c) of the Rules of Civil Procedure promulgated
by the Court on December 20, 1937, effective September 16, 1938; Rule 2
of the Rules for Practice and Procedure under section 25 of an act to
amend and consolidate the acts respecting copyright, approved March 4,
1909, promulgated by the Court on June 1, 1909, effective July 1, 1909;
and the Rules of Practice in Admiralty and Maritime Cases, promulgated
by the Court on December 6, 1920, effective March 7, 1921, as revised,
amended and supplemented, were rescinded, effective July 1, 1966.
Additional amendments were adopted by the Court by order dated
December 4, 1967, transmitted to Congress by the Chief Justice on
January 15, 1968 (389 U.S. 1121; Cong. Rec., vol. 114, pt. 1, p. 113,
Exec. Comm. 1361; H. Doc. 204, 90th Cong.), and became effective July 1,
1968. The amendments affected Rules 6(b), 9(h), 41(a)(1), 77(d), 81(a),
and abrogated the chapter heading ``IX. Appeals'' and Rules 72-76, and
Form 27.
Additional amendments were adopted by the Court by order dated March
30, 1970, transmitted to Congress by the Chief Justice on the same day
(398 U.S. 977; Cong. Rec., vol. 116, pt. 7, p. 9861, Exec. Comm. 1839;
H. Doc. 91-291), and became effective July 1, 1970. The amendments
affected Rules 5(a), 9(h), 26, 29 to 37, 45(d), and 69(a), and Form 24.
On March 1, 1971, the Court adopted additional amendments, which
were transmitted to Congress by the Chief Justice on the same day (401
U.S. 1017; Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H.
Doc. 92-57), and became effective July 1, 1971. The amendments affected
Rules 6(a), 27(a)(4), 30(b)(6), 77(c), and 81(a)(2).
Further amendments were proposed by the Court in its orders dated
November 20 and December 18, 1972, and transmitted to Congress by the
Chief Justice on February 5, 1973 (409 U.S. 1132 and 419 U.S. 1133;
Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359; H. Doc. 93-46).
Although these amendments were to have become effective July 1, 1973,
Public Law 93-12 (approved March 30, 1973, 87 Stat. 9) provided that the
proposed amendments ``shall have no force or effect except to the
extent, and with such amendments, as they may be expressly approved by
Act of Congress.'' Section 3 of Public Law 93-595 (approved January 2,
1975, 88 Stat. 1949) approved the amendments proposed by the Court, to
be effective July 1, 1975. The amendments affected Rules 30(c), 43, and
44.1, and abrogated Rule 32(c).
On April 29, 1980, the Court adopted additional amendments, which
were transmitted to Congress by the Chief Justice on the same day (446
U.S. 995; Cong. Rec., vol. 126, pt. 8, p. 9535, Exec. Comm. 4260; H.
Doc. 96-306), and became effective August 1, 1980. The amendments
affected Rules 4, 5, 26, 28, 30, 32, 33, 34, 37, and 45.
Section 205(a) and (b) of Public Law 96-481 (approved October 21,
1980, 94 Stat. 2330) repealed Rule 37(f) and deleted the corresponding
item from the Table of Contents, to be effective October 1, 1981.
Amendments to Rule 4 were adopted by the Court by order dated April
28, 1982, transmitted to Congress by the Chief Justice on the same day
(456 U.S. 1013; Cong. Rec., vol. 128, pt. 6, p. 8191, Exec. Comm. 3822;
H. Doc. 97-173), and became effective August 1, 1982. However, Public
Law 97-227 (approved August 2, 1982, 96 Stat. 246) provided that the
amendments to Rule 4 shall take effect on October 1, 1983, unless
previously approved, disapproved, or modified by Act of Congress, and
further provided that this Act shall be effective as of August 1, 1982,
but shall not apply to the service of process that takes place between
August 1, 1982, and the date of enactment of this Act [August 2, 1982].
Section 5 of Public Law 97-462 (approved January 12, 1983, 96 Stat.
2530) provided that the amendments to Rule 4 the effective date of which
was delayed by Public Law 97-227 shall not take effect. Sections 2 to 4
of Public Law 97-462 amended Rule 4(a), (c) to (e), and (g), added Rule
4(j), and added Form 18-A in the Appendix of Forms, effective 45 days
after enactment of Public Law 97-462 [February 26, 1983].
Additional amendments were adopted by the Court by order dated April
28, 1983, transmitted to Congress by the Chief Justice on the same day
(461 U.S. 1095; Cong. Rec., vol. 129, pt. 8, p. 10479, Exec. Comm. 1027;
H. Doc. 98-54), and became effective August 1, 1983. The amendments
included new Rules 26(g), 53(f), 72 through 76 and new Official Forms 33
and 34, and amendments to Rules 6(b), 7(b), 11, 16, 26(a), (b), 52(a),
53(a), (b), (c), and 67.
Additional amendments were adopted by the Court by order dated April
29, 1985, transmitted to Congress by the Chief Justice on the same day
(471 U.S. 1153; Cong. Rec., vol. 131, pt. 7, p. 9826, Exec. Comm. 1156;
H. Doc. 99-63), and became effective August 1, 1985. The amendments
affected Rules 6(a), 45(d)(2), 52(a), 71A(h), and 83, Official Form 18-
A, and Rules B(1), C(3), and E(4)(f) of the Supplemental Rules for
Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated March
2, 1987, transmitted to Congress by the Chief Justice on the same day
(480 U.S. 953; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 714; H.
Doc. 100-40), and became effective August 1, 1987. The amendments
affected Rules 4(b), (d)(1), (e), (i)(1), 5(b), (e), 6(e), 8(a), (b),
(e)(2), 9(a), 11, 12(a), (b), (e) to (g), 13(a), (e), (f), 14, 15,
16(f), 17, 18, 19(a), (b), 20(b), 22(1), 23(c)(2), 23.1, 24(a), 25(b),
(d), 26(b)(3), (e)(1), (2), (f)(5), (g), 27(a)(1), (b), 28(b), 30(b)(1),
(2), (4), (6), (7), (c), (e), (f)(1), (g), 31(a), (b), 32(a)(4), 34(a),
35(a), (b)(1), (2), 36, 37(a)(2), (b)(2), (c), (d), (g), 38(c), (d),
41(a)(2), (b), 43(f), 44(a)(1), 44.1, 45(c), (f), 46, 49(a), 50(b), (d),
51, 53(a), (c) to (e)(1), (3), (5), 54(c), 55(a), (b), (e), 56(a), (b),
(e) to (g), 60(b), 62(f), 63, 65(b), 65.1, 68, 69, 71, 71A(d)(2),
(3)(ii), (e) to (g), (j), 73(b), 75(b)(2), (c)(1), (2), (4), 77(c), 78,
and 81(c), and Rules B, C(3), (6), E(2)(b), (4)(b), (c), (5)(c), (9)(b),
(c), and F(1) to (6) of the Supplemental Rules for Certain Admiralty and
Maritime Claims.
Additional amendments were adopted by the Court by order dated April
25, 1988, transmitted to Congress by the Chief Justice on the same day
(485 U.S. 1043; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3515;
H. Doc. 100-185), and became effective August 1, 1988. The amendments
affected Rules 17(a) and 71A(e).
Section 7047(b) of Public Law 100-690 (approved November 18, 1988,
102 Stat. 4401) amended Rule 35. Section 7049 of Public Law 100-690,
which directed amendment of Rule 17(a) by striking ``with him'', and
section 7050 of Public Law 100-690, which directed amendment of Rule
71A(e) by striking ``taking of the defendants property'' and inserting
``taking of the defendant's property'', could not be executed because of
the intervening amendments to those Rules by the Court by order dated
April 25, 1988, effective August 1, 1988.
Additional amendments were adopted by the Court by order dated April
30, 1991, transmitted to Congress by the Chief Justice on the same day
(500 U.S. 963; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1190; H.
Doc. 102-77), and became effective December 1, 1991. The amendments
affected Rules 5, 15, 24, 34, 35, 41, 44, 45, 47, 48, 50, 52, 53, 63,
72, and 77, the headings for chapters VIII and IX, and Rules C and E of
the Supplemental Rules for Certain Admiralty and Maritime Claims, added
new Official Forms 1A and 1B, and abrogated Form 18-A.
Section 11 of Pub. L. 102-198 (approved December 9, 1991, 105 Stat.
1626) amended Rule 15(c)(3) as transmitted to Congress by the Supreme
Court to become effective on December 1, 1991; provided that Forms 1A
and 1B included in the transmittal shall not be effective; and provided
that Form 18-A, abrogated by the Supreme Court in the transmittal,
effective December 1, 1991, shall continue in effect on or after that
date.
Additional amendments were adopted by the Court by order dated April
22, 1993, transmitted to Congress by the Chief Justice on the same day
(507 U.S. 1089; Cong. Rec., vol. 139, pt. 6, p. 8127, Exec. Comm. 1102;
H. Doc. 103-74), and became effective December 1, 1993. The amendments
affected Rules 1, 4, 5, 11, 12, 15, 16, 26, 28, 29, 30, 31, 32, 33, 34,
36, 37, 38, 50, 52, 53, 54, 58, 71A, 72, 73, 74, 75, and 76, added new
Rule 4.1, affected Forms 2, 33, 34, and 34A, added new Forms 1A, 1B, and
35, and abrogated Form 18-A.
Additional amendments were adopted by the Court by order dated April
27, 1995, transmitted to Congress by the Chief Justice on the same day
(514 U.S. 1151; Cong. Rec., vol. 141, pt. 8, p. 11745, Ex. Comm. 804; H.
Doc. 104-64), and became effective December 1, 1995. The amendments
affected Rules 50, 52, 59, and 83.
Additional amendments were adopted by the Court by order dated April
23, 1996, transmitted to Congress by the Chief Justice on the same day
(517 U.S. 1279; Cong. Rec., vol. 142, pt. 6, p. 8831, Ex. Comm. 2487; H.
Doc. 104-201), and became effective December 1, 1996. The amendments
affected Rules 5 and 43.
Additional amendments were adopted by the Court by order dated April
11, 1997, transmitted to Congress by the Chief Justice on the same day
(520 U.S. 1305; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2795; H.
Doc. 105-67), and became effective December 1, 1997. The amendments
affected Rules 9 and 73, abrogated Rules 74, 75, and 76, and affected
Forms 33 and 34.
Additional amendments were adopted by the Court by order dated April
24, 1998, transmitted to Congress by the Chief Justice on the same day
(523 U.S. 1221; H. Doc. 105-266), and became effective December 1, 1998.
The amendments affected Rule 23.
Additional amendments were adopted by the Court by order dated April
26, 1999, transmitted to Congress by the Chief Justice on the same day
(526 U.S. 1183; Cong. Rec., vol. 145, pt. 6, p. 7907, Ex. Comm. 1787; H.
Doc. 106-54), and became effective December 1, 1999. The amendments
affected Rule 6 and Form 2.
Additional amendments were adopted by the Court by order dated April
17, 2000, transmitted to Congress by the Chief Justice on the same day
(529 U.S. 1155; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7336; H.
Doc. 106-228), and became effective December 1, 2000. The amendments
affected Rules 4, 5, 12, 14, 26, 30, and 37 and Rules B, C, and E of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated April
23, 2001, transmitted to Congress by the Chief Justice on the same day
(532 U.S. 992; Cong. Rec., vol. 147, pt. 5, p. 6126, Ex. Comm. 1575; H.
Doc. 107-61), and became effective December 1, 2001. The amendments
affected Rules 5, 6, 65, 77, 81, and 82.
Additional amendments were adopted by the Court by order dated April
29, 2002, transmitted to Congress by the Chief Justice on the same day
(535 U.S. 1147; Cong. Rec., vol. 148, pt. 5, p. 6813, Ex. Comm. 6623; H.
Doc. 107-204), and became effective December 1, 2002. The amendments
affected Rules 54, 58, and 81 and Rule C of the Supplemental Rules for
Certain Admiralty and Maritime Claims and added new Rule 7.1.
Additional amendments were adopted by the Court by order dated March
27, 2003, transmitted to Congress by the Chief Justice on the same day
(538 U.S. 1083; Cong. Rec., vol. 149, pt. 6, p. 7689, Ex. Comm. 1493; H.
Doc. 108-56), and became effective December 1, 2003. The amendments
affected Rules 23, 51, 53, 54, and 71A and Forms 19, 31, and 32.
Additional amendments were adopted by the Court by order dated April
25, 2005, transmitted to Congress by the Chief Justice on the same day
(544 U.S. 1173; Cong. Rec., vol. 151, p. H3060, Daily Issue, Ex. Comm.
1906; H. Doc. 109-23), and became effective December 1, 2005. The
amendments affected Rules 6, 27, and 45, and Rules B and C of the
Supplemental Rules for Certain Admiralty and Maritime Claims.
Additional amendments were adopted by the Court by order dated April
12, 2006, transmitted to Congress by the Chief Justice on the same day
(547 U.S. 1233; Cong. Rec., vol. 152, p. H2179, Daily Issue, Ex. Comm.
7317; H. Doc. 109-105), and became effective December 1, 2006. The
amendments affected Rules 5, 9, 14, 16, 24, 26, 33, 34, 37, 45, 50, and
65.1, added new Rule 5.1, affected Form 35, affected Rules A, C, and E
of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions, and added new Rule G to such Supplemental Rules.
Additional amendments were adopted by the Court by order dated April
30, 2007, transmitted to Congress by the Chief Justice on the same day
(550 U.S. 1003; Cong. Rec., vol. 153, p. H4208, Daily Issue, Ex. Comm.
1377; H. Doc. 110-27), and became effective December 1, 2007. The
amendments affected Rules 1 through 86 and added new Rule 5.2; Forms 1
through 35 were amended to become restyled Forms 1 through 82.
An additional amendment was adopted by the Court by order dated
April 23, 2008, transmitted to Congress by the Chief Justice on the same
day (553 U.S. ----; Cong. Rec., vol. 154, p. H4876, Daily Issue, Ex.
Comm. 6881; H. Doc. 110-117), and became effective December 1, 2008. The
amendment affected Rule C of the Supplemental Rules for Admiralty or
Maritime Claims and Asset Forfeiture Actions.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice and
Procedure and the Advisory Committee on the Federal Rules of Civil
Procedure, Judicial Conference of the United States, explaining the
purpose and intent of the amendments are set out in the Appendix to
Title 28, United States Code, following the particular rule to which
they relate. In addition, the rules and amendments, together with
Committee Notes, are set out in the House documents listed above.
TABLE OF CONTENTS
____
Page
Foreword...................................................... iii
Authority for promulgation of rules........................... v
Historical note............................................... vii
RULES
TITLE I. SCOPE OF RULES; FORM OF ACTION
Rule 1. Scope and Purpose......................................1
Rule 2. One Form of Action.....................................1
TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS,
MOTIONS, AND ORDERS
Rule 3. Commencing an Action...................................1
Rule 4. Summons................................................1
Rule 4.1. Serving Other Process................................6
Rule 5. Serving and Filing Pleadings and Other Papers..........6
Rule 5.1. Constitutional Challenge to a Statute -- Notice,
Certification, and Intervention................8
Rule 5.2. Privacy Protection For Filings Made with the Court...9
Rule 6. Computing and Extending Time; Time for Motion Papers..10
TITLE III. PLEADINGS AND MOTIONS
Rule 7. Pleadings Allowed; Form of Motions and Other Papers...11
Rule 7.1. Disclosure Statement................................11
Rule 8. General Rules of Pleading.............................12
Rule 9. Pleading Special Matters..............................13
Rule 10. Form of Pleadings....................................14
Rule 11. Signing Pleadings, Motions, and Other Papers;
Representations to the Court; Sanctions.......14
Rule 12. Defenses and Objections: When and How Presented; Motion
for Judgment on the Pleadings; Consolidating
Motions; Waiving Defenses; Pretrial Hearing...16
Rule 13. Counterclaim and Crossclaim..........................18
Rule 14. Third-Party Practice.................................19
Rule 15. Amended and Supplemental Pleadings...................20
Rule 16. Pretrial Conferences; Scheduling; Management.........22
TITLE IV. PARTIES
Rule 17. Plaintiff and Defendant; Capacity; Public Officers...24
Rule 18. Joinder of Claims....................................25
Rule 19. Required Joinder of Parties..........................25
Rule 20. Permissive Joinder of Parties........................26
Rule 21. Misjoinder and Nonjoinder of Parties.................27
Rule 22. Interpleader.........................................27
Rule 23. Class Actions........................................27
Rule 23.1. Derivative Actions.................................31
Rule 23.2. Actions Relating to Unincorporated Associations....31
Rule 24. Intervention.........................................32
Rule 25. Substitution of Parties..............................32
TITLE V. DISCLOSURES AND DISCOVERY
Rule 26. Duty to Disclose; General Provisions Governing
Discovery.....................................33
Rule 27. Depositions to Perpetuate Testimony..................41
Rule 28. Persons Before Whom Depositions May Be Taken.........42
Rule 29. Stipulations About Discovery Procedure...............43
Rule 30. Depositions by Oral Examination......................44
Rule 31. Depositions by Written Questions.....................47
Rule 32. Using Depositions in Court Proceedings...............48
Rule 33. Interrogatories to Parties...........................51
Rule 34. Producing Documents, Electronically Stored Information,
and Tangible Things, or Entering onto Land, for
Inspection and Other Purposes.................52
TITLE V. DISCLOSURES AND DISCOVERY--Continued
Page
Rule 35. Physical and Mental Examinations.....................53
Rule 36. Requests for Admission...............................54
Rule 37. Failure to Make Disclosures or to Cooperate in
Discovery; Sanctions..........................55
TITLE VI. TRIALS
Rule 38. Right to a Jury Trial; Demand........................58
Rule 39. Trial by Jury or by the Court........................59
Rule 40. Scheduling Cases for Trial...........................59
Rule 41. Dismissal of Actions.................................59
Rule 42. Consolidation; Separate Trials.......................60
Rule 43. Taking Testimony.....................................61
Rule 44. Proving an Official Record...........................61
Rule 44.1. Determining Foreign Law............................62
Rule 45. Subpoena.............................................62
Rule 46. Objecting to a Ruling or Order.......................66
Rule 47. Selecting Jurors.....................................66
Rule 48. Number of Jurors; Verdict............................67
Rule 49. Special Verdict; General Verdict and Questions.......67
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related
Motion for a New Trial; Conditional Ruling....68
Rule 51. Instructions to the Jury; Objections; Preserving a
Claim of Error................................69
Rule 52. Findings and Conclusions by the Court; Judgment on
Partial Findings..............................70
Rule 53. Masters..............................................71
TITLE VII. JUDGMENT
Rule 54. Judgment; Costs......................................73
Rule 55. Default; Default Judgment............................74
Rule 56. Summary Judgment.....................................75
Rule 57. Declaratory Judgment.................................76
Rule 58. Entering Judgment....................................76
Rule 59. New Trial; Altering or Amending a Judgment...........77
Rule 60. Relief from a Judgment or Order......................78
Rule 61. Harmless Error.......................................79
Rule 62. Stay of Proceedings to Enforce a Judgment............79
Rule 63. Judge's Inability to Proceed.........................80
TITLE VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64. Seizing a Person or Property.........................80
Rule 65. Injunctions and Restraining Orders...................80
Rule 65.1. Proceedings Against a Surety.......................82
Rule 66. Receivers............................................82
Rule 67. Deposit into Court...................................82
Rule 68. Offer of Judgment....................................83
Rule 69. Execution............................................83
Rule 70. Enforcing a Judgment for a Specific Act..............84
Rule 71. Enforcing Relief For or Against a Nonparty...........84
TITLE IX. SPECIAL PROCEEDINGS
Rule 71.1. Condemning Real or Personal Property...............84
Rule 72. Magistrate Judges: Pretrial Order....................89
Rule 73. Magistrate Judges: Trial by Consent; Appeal..........89
Rule 74. [Abrogated.]
Rule 75. [Abrogated.]
Rule 76. [Abrogated.]
TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS;
ISSUING ORDERS
Rule 77. Conducting Business; Clerk's Authority; Notice of an
Order or Judgment.............................90
Rule 78. Hearing Motions; Submission on Briefs................91
Rule 79. Records Kept by the Clerk............................91
Rule 80. Stenographic Transcript as Evidence..................92
TITLE XI. GENERAL PROVISIONS
Rule 81. Applicability of the Rules in General; Removed Action92
Rule 82. Jurisdiction and Venue Unaffected....................94
Rule 83. Rules by District Courts; Judge's Directives.........94
Rule 84. Forms................................................94
Rule 85. Title................................................95
Rule 86. Effective Dates......................................95
APPENDIX OF FORMS
Page
Form 1. Caption............................................... 98
Form 2. Date, Signature, Address, E-mail Address, and
Telephone Number...................... 99
Form 3. Summons............................................... 100
Form 4. Summons on a Third-Party Complaint.................... 101
Form 5. Notice of a Lawsuit and Request to Waive Service of a
Summons............................... 102
Form 6. Waiver of the Service of Summons...................... 103
Form 7. Statement of Jurisdiction............................. 104
Form 8. Statement of Reasons for Omitting a Party............. 105
Form 9. Statement Noting a Party's Death...................... 106
Form 10. Complaint to Recover a Sum Certain................... 107
Form 11. Complaint for Negligence............................. 108
Form 12. Complaint for Negligence When the Plaintiff Does Not
Know Who Is Responsible............... 109
Form 13. Complaint for Negligence Under the Federal Employers'
Liability Act......................... 110
Form 14. Complaint for Damages Under the Merchant Marine Act.. 111
Form 15. Complaint for the Conversion of Property............. 112
Form 16. Third-Party Complaint................................ 113
Form 17. Complaint for Specific Performance of a Contract to
Convey Land........................... 114
Form 18. Complaint for Patent Infringement.................... 115
Form 19. Complaint for Copyright Infringement and Unfair
Competition........................... 116
Form 20. Complaint for Interpleader and Declaratory Relief.... 117
Form 21. Complaint on a Claim for a Debt and to Set Aside a
Fraudulent Conveyance Under Rule 18(b) 118
Form 30. Answer Presenting Defenses Under Rule 12(b).......... 119
Form 31. Answer to a Complaint for Money Had and Received with
a Counterclaim for Interpleader....... 120
Form 40. Motion to Dismiss Under Rule 12(b) for Lack of
Jurisdiction, Improper Venue,
Insufficient Service of Process, or
Failure to State a Claim.............. 121
Form 41. Motion to Bring in a Third-Party Defendant........... 122
Form 42. Motion to Intervene as a Defendant Under Rule 24..... 123
Form 50. Request to Produce Documents and Tangible Things, or
to Enter onto Land Under Rule 34...... 124
Form 51. Request for Admissions Under Rule 36................. 125
Form 52. Report of the Parties' Planning Meeting.............. 126
Form 60. Notice of Condemnation............................... 127
Form 61. Complaint for Condemnation........................... 128
Form 70. Judgment on a Jury Verdict........................... 129
Form 71. Judgment by the Court without a Jury................. 130
Form 80. Notice of a Magistrate Judge's Availability.......... 131
Form 81. Consent to an Assignment to a Magistrate Judge....... 132
Form 82. Order of Assignment to a Magistrate Judge............ 133
SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET FORFEITURE
ACTIONS
Rule A. Scope of Rules........................................ 134
Rule B. In Personam Actions: Attachment and Garnishment....... 134
Rule C. In Rem Actions: Special Provisions.................... 135
Rule D. Possessory, Petitory, and Partition Actions........... 137
Rule E. Actions in Rem and Quasi in Rem: General Provisions... 138
Rule F. Limitation of Liability............................... 141
Rule G. Forfeiture Actions In Rem............................. 144
FEDERAL RULES OF CIVIL PROCEDURE
RULES OF CIVIL PROCEDURE
FOR THE
UNITED STATES DISTRICT COURTS \1\
---------------------------------------------------------------------------
\1\ Title amended December 29, 1948, effective October 20, 1949.
---------------------------------------------------------------------------
Effective September 16, 1938, as amended to December 1, 2008
TITLE I. SCOPE OF RULES; FORM OF ACTION
Rule 1
. Scope and Purpose_______________________________________________
These rules govern the procedure in all civil actions and
proceedings in the United States district courts, except as stated in
Rule 81. They should be construed and administered to secure the just,
speedy, and inexpensive determination of every action and proceeding.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 2
. One Form of Action______________________________________________
There is one form of action -- the civil action.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
AND ORDERS
Rule 3
. Commencing an Action____________________________________________
A civil action is commenced by filing a complaint with the court.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 4
. Summons_________________________________________________________
(a) Contents; Amendments.
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff's
attorney or -- if unrepresented -- of the plaintiff;
(D) state the time within which the defendant must
appear and defend;
(E) notify the defendant that a failure to appear
and defend will result in a default judgment against the
defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court's seal.
(2) Amendments. The court may permit a summons to be
amended.
(b) Issuance. On or after filing the complaint, the plaintiff may
present a summons to the clerk for signature and seal. If the summons is
properly completed, the clerk must sign, seal, and issue it to the
plaintiff for service on the defendant. A summons -- or a copy of a
summons that is addressed to multiple defendants -- must be issued for
each defendant to be served.
(c) Service.
(1) In General. A summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons
and complaint served within the time allowed by Rule 4(m) and
must furnish the necessary copies to the person who makes
service.
(2) By Whom. Any person who is at least 18 years old and not
a party may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the
plaintiff's request, the court may order that service be made by
a United States marshal or deputy marshal or by a person
specially appointed by the court. The court must so order if the
plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. Sec. 1915 or as a seaman under 28 U.S.C. Sec. 1916.
(d) Waiving Service.
(1) Requesting a Waiver. An individual, corporation, or
association that is subject to service under Rule 4(e), (f), or
(h) has a duty to avoid unnecessary expenses of serving the
summons. The plaintiff may notify such a defendant that an
action has been commenced and request that the defendant waive
service of a summons. The notice and request must:
(A) be in writing and be addressed:
(i) to the individual defendant; or
(ii) for a defendant subject to service
under Rule 4(h), to an officer, a managing or
general agent, or any other agent authorized by
appointment or by law to receive service of
process;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint, 2
copies of a waiver form, and a prepaid means for
returning the form;
(D) inform the defendant, using text prescribed in
Form 5, of the consequences of waiving and not waiving
service;
(E) state the date when the request is sent;
(F) give the defendant a reasonable time of at least
30 days after the request was sent -- or at least 60
days if sent to the defendant outside any judicial
district of the United States -- to return the waiver;
and
(G) be sent by first-class mail or other reliable
means.
(2) Failure to Waive. If a defendant located within the
United States fails, without good cause, to sign and return a
waiver requested by a plaintiff located within the United
States, the court must impose on the defendant:
(A) the expenses later incurred in making service;
and
(B) the reasonable expenses, including attorney's
fees, of any motion required to collect those service
expenses.
(3) Time to Answer After a Waiver. A defendant who, before
being served with process, timely returns a waiver need not
serve an answer to the complaint until 60 days after the request
was sent -- or until 90 days after it was sent to the defendant
outside any judicial district of the United States.
(4) Results of Filing a Waiver. When the plaintiff files a
waiver, proof of service is not required and these rules apply
as if a summons and complaint had been served at the time of
filing the waiver.
(5) Jurisdiction and Venue Not Waived. Waiving service of a
summons does not waive any objection to personal jurisdiction or
to venue.
(e) Serving an Individual Within a Judicial District of the United
States. Unless federal law provides otherwise, an individual -- other
than a minor, an incompetent person, or a person whose waiver has been
filed -- may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual's
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized
by appointment or by law to receive service of process.
(f) Serving an Individual in a Foreign Country. Unless federal law
provides otherwise, an individual -- other than a minor, an incompetent
person, or a person whose waiver has been filed -- may be served at a
place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is
reasonably calculated to give notice, such as those authorized
by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an
international agreement allows but does not specify other means,
by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for
service in that country in an action in its courts of
general jurisdiction;
(B) as the foreign authority directs in response to
a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law,
by:
(i) delivering a copy of the summons and of
the complaint to the individual personally; or
(ii) using any form of mail that the clerk
addresses and sends to the individual and that
requires a signed receipt; or
(3) by other means not prohibited by international
agreement, as the court orders.
(g) Serving a Minor or an Incompetent Person. A minor or an
incompetent person in a judicial district of the United States must be
served by following state law for serving a summons or like process on
such a defendant in an action brought in the courts of general
jurisdiction of the state where service is made. A minor or an
incompetent person who is not within any judicial district of the United
States must be served in the manner prescribed by Rule 4(f)(2)(A),
(f)(2)(B), or (f)(3).
(h) Serving a Corporation, Partnership, or Association. Unless
federal law provides otherwise or the defendant's waiver has been filed,
a domestic or foreign corporation, or a partnership or other
unincorporated association that is subject to suit under a common name,
must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for
serving an individual; or
(B) by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to
receive service of process and -- if the agent is one
authorized by statute and the statute so requires -- by
also mailing a copy of each to the defendant; or
(2) at a place not within any judicial district of the
United States, in any manner prescribed by Rule 4(f) for serving
an individual, except personal delivery under (f)(2)(C)(i).
(i) Serving the United States and Its Agencies, Corporations,
Officers, or Employees.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the
complaint to the United States attorney for the district
where the action is brought -- or to an assistant United
States attorney or clerical employee whom the United
States attorney designates in a writing filed with the
court clerk -- or
(ii) send a copy of each by registered or certified
mail to the civil-process clerk at the United States
attorney's office;
(B) send a copy of each by registered or certified
mail to the Attorney General of the United States at
Washington, D.C.; and
(C) if the action challenges an order of a nonparty
agency or officer of the United States, send a copy of
each by registered or certified mail to the agency or
officer.
(2) Agency; Corporation; Officer or Employee Sued in an
Official Capacity. To serve a United States agency or
corporation, or a United States officer or employee sued only in
an official capacity, a party must serve the United States and
also send a copy of the summons and of the complaint by
registered or certified mail to the agency, corporation,
officer, or employee.
(3) Officer or Employee Sued Individually. To serve a United
States officer or employee sued in an individual capacity for an
act or omission occurring in connection with duties performed on
the United States' behalf (whether or not the officer or
employee is also sued in an official capacity), a party must
serve the United States and also serve the officer or employee
under Rule 4(e), (f), or (g).
(4) Extending Time. The court must allow a party a
reasonable time to cure its failure to:
(A) serve a person required to be served under Rule
4(i)(2), if the party has served either the United
States attorney or the Attorney General of the United
States; or
(B) serve the United States under Rule 4(i)(3), if
the party has served the United States officer or
employee.
(j) Serving a Foreign, State, or Local Government.
(1) Foreign State. A foreign state or its political
subdivision, agency, or instrumentality must be served in
accordance with 28 U.S.C. Sec. 1608.
(2) State or Local Government. A state, a municipal
corporation, or any other state-created governmental
organization that is subject to suit must be served by:
(A) delivering a copy of the summons and of the
complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed
by that state's law for serving a summons or like
process on such a defendant.
(k) Territorial Limits of Effective Service.
(1) In General. Serving a summons or filing a waiver of
service establishes personal jurisdiction over a defendant:
(A) who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district
court is located;
(B) who is a party joined under Rule 14 or 19 and is
served within a judicial district of the United States
and not more than 100 miles from where the summons was
issued; or
(C) when authorized by a federal statute.
(2) Federal Claim Outside State-Court Jurisdiction. For a
claim that arises under federal law, serving a summons or filing
a waiver of service establishes personal jurisdiction over a
defendant if:
(A) the defendant is not subject to jurisdiction in
any state's courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the
United States Constitution and laws.
(l) Proving Service.
(1) Affidavit Required. Unless service is waived, proof of
service must be made to the court. Except for service by a
United States marshal or deputy marshal, proof must be by the
server's affidavit.
(2) Service Outside the United States. Service not within
any judicial district of the United States must be proved as
follows:
(A) if made under Rule 4(f)(1), as provided in the
applicable treaty or convention; or
(B) if made under Rule 4(f)(2) or (f)(3), by a
receipt signed by the addressee, or by other evidence
satisfying the court that the summons and complaint were
delivered to the addressee.
(3) Validity of Service; Amending Proof. Failure to prove
service does not affect the validity of service. The court may
permit proof of service to be amended.
(m) Time Limit for Service. If a defendant is not served within 120
days after the complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must dismiss the action without
prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.
This subdivision (m) does not apply to service in a foreign country
under Rule 4(f) or 4(j)(1).
(n) Asserting Jurisdiction over Property or Assets.
(1) Federal Law. The court may assert jurisdiction over
property if authorized by a federal statute. Notice to claimants
of the property must be given as provided in the statute or by
serving a summons under this rule.
(2) State Law. On a showing that personal jurisdiction over
a defendant cannot be obtained in the district where the action
is brought by reasonable efforts to serve a summons under this
rule, the court may assert jurisdiction over the defendant's
assets found in the district. Jurisdiction is acquired by
seizing the assets under the circumstances and in the manner
provided by state law in that district.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Jan. 12, 1983, eff. Feb. 26,
1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 4.1
. Serving Other Process___________________________________________
(a) In General. Process -- other than a summons under Rule 4 or a
subpoena under Rule 45 -- must be served by a United States marshal or
deputy marshal or by a person specially appointed for that purpose. It
may be served anywhere within the territorial limits of the state where
the district court is located and, if authorized by a federal statute,
beyond those limits. Proof of service must be made under Rule 4(l).
(b) Enforcing Orders: Committing for Civil Contempt. An order
committing a person for civil contempt of a decree or injunction issued
to enforce federal law may be served and enforced in any district. Any
other order in a civil-contempt proceeding may be served only in the
state where the issuing court is located or elsewhere in the United
States within 100 miles from where the order was issued.
(As added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 5
. Serving and Filing Pleadings and Other Papers___________________
(a) Service: When Required.
(1) In General. Unless these rules provide otherwise, each
of the following papers must be served on every party:
(A) an order stating that service is required;
(B) a pleading filed after the original complaint,
unless the court orders otherwise under Rule 5(c)
because there are numerous defendants;
(C) a discovery paper required to be served on a
party, unless the court orders otherwise;
(D) a written motion, except one that may be heard
ex parte; and
(E) a written notice, appearance, demand, or offer
of judgment, or any similar paper.
(2) If a Party Fails to Appear. No service is required on a
party who is in default for failing to appear. But a pleading
that asserts a new claim for relief against such a party must be
served on that party under Rule 4.
(3) Seizing Property. If an action is begun by seizing
property and no person is or need be named as a defendant, any
service required before the filing of an appearance, answer, or
claim must be made on the person who had custody or possession
of the property when it was seized.
(b) Service: How Made.
(1) Serving an Attorney. If a party is represented by an
attorney, service under this rule must be made on the attorney
unless the court orders service on the party.
(2) Service in General. A paper is served under this rule
by:
(A) handing it to the person;
(B) leaving it:
(i) at the person's office with a clerk or
other person in charge or, if no one is in
charge, in a conspicuous place in the office; or
(ii) if the person has no office or the
office is closed, at the person's dwelling or
usual place of abode with someone of suitable
age and discretion who resides there;
(C) mailing it to the person's last known address --
in which event service is complete upon mailing;
(D) leaving it with the court clerk if the person
has no known address;
(E) sending it by electronic means if the person
consented in writing -- in which event service is
complete upon transmission, but is not effective if the
serving party learns that it did not reach the person to
be served; or
(F) delivering it by any other means that the person
consented to in writing -- in which event service is
complete when the person making service delivers it to
the agency designated to make delivery.
(3) Using Court Facilities. If a local rule so authorizes, a
party may use the court's transmission facilities to make
service under Rule 5(b)(2)(E).
(c) Serving Numerous Defendants.
(1) In General. If an action involves an unusually large
number of defendants, the court may, on motion or on its own,
order that:
(A) defendants' pleadings and replies to them need
not be served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or
affirmative defense in those pleadings and replies to
them will be treated as denied or avoided by all other
parties; and
(C) filing any such pleading and serving it on the
plaintiff constitutes notice of the pleading to all
parties.
(2) Notifying Parties. A copy of every such order must be
served on the parties as the court directs.
(d) Filing.
(1) Required Filings; Certificate of Service. Any paper
after the complaint that is required to be served -- together
with a certificate of service -- must be filed within a
reasonable time after service. But disclosures under Rule
26(a)(1) or (2) and the following discovery requests and
responses must not be filed until they are used in the
proceeding or the court orders filing: depositions,
interrogatories, requests for documents or tangible things or to
permit entry onto land, and requests for admission.
(2) How Filing Is Made -- In General. A paper is filed by
delivering it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing,
and who must then note the filing date on the paper and
promptly send it to the clerk.
(3) Electronic Filing, Signing, or Verification. A court
may, by local rule, allow papers to be filed, signed, or
verified by electronic means that are consistent with any
technical standards established by the Judicial Conference of
the United States. A local rule may require electronic filing
only if reasonable exceptions are allowed. A paper filed
electronically in compliance with a local rule is a written
paper for purposes of these rules.
(4) Acceptance by the Clerk. The clerk must not refuse to
file a paper solely because it is not in the form prescribed by
these rules or by a local rule or practice.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff. Dec. 1,
2000; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 12, 2006, eff. Dec. 1,
2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 5.1
. Constitutional Challenge to a Statute -- Notice, Certification,
and Intervention________________________________________________________
(a) Notice by a Party. A party that files a pleading, written
motion, or other paper drawing into question the constitutionality of a
federal or state statute must promptly:
(1) file a notice of constitutional question stating the
question and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties
do not include the United States, one of its agencies,
or one of its officers or employees in an official
capacity; or
(B) a state statute is questioned and the parties do
not include the state, one of its agencies, or one of
its officers or employees in an official capacity; and
(2) serve the notice and paper on the Attorney General of
the United States if a federal statute is questioned -- or on
the state attorney general if a state statute is questioned --
either by certified or registered mail or by sending it to an
electronic address designated by the attorney general for this
purpose.
(b) Certification by the Court. The court must, under 28 U.S.C.
Sec. 2403, certify to the appropriate attorney general that a statute
has been questioned.
(c) Intervention; Final Decision on the Merits. Unless the court
sets a later time, the attorney general may intervene within 60 days
after the notice is filed or after the court certifies the challenge,
whichever is earlier. Before the time to intervene expires, the court
may reject the constitutional challenge, but may not enter a final
judgment holding the statute unconstitutional.
(d) No Forfeiture. A party's failure to file and serve the notice,
or the court's failure to certify, does not forfeit a constitutional
claim or defense that is otherwise timely asserted.
(As added Apr. 12, 2006, eff. Dec. 1, 2006; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 5.2
. Privacy Protection For Filings Made with the Court______________
(a) Redacted Filings. Unless the court orders otherwise, in an
electronic or paper filing with the court that contains an individual's
social-security number, taxpayer-identification number, or birth date,
the name of an individual known to be a minor, or a financial-account
number, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and
taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
(b) Exemptions from the Redaction Requirement. The redaction
requirement does not apply to the following:
(1) a financial-account number that identifies the property
allegedly subject to forfeiture in a forfeiture proceeding;
(2) the record of an administrative or agency proceeding;
(3) the official record of a state-court proceeding;
(4) the record of a court or tribunal, if that record was
not subject to the redaction requirement when originally filed;
(5) a filing covered by Rule 5.2(c) or (d); and
(6) a pro se filing in an action brought under 28 U.S.C.
Sec. Sec. 2241, 2254, or 2255.
(c) Limitations on Remote Access to Electronic Files; Social-
Security Appeals and Immigration Cases. Unless the court orders
otherwise, in an action for benefits under the Social Security Act, and
in an action or proceeding relating to an order of removal, to relief
from removal, or to immigration benefits or detention, access to an
electronic file is authorized as follows:
(1) the parties and their attorneys may have remote
electronic access to any part of the case file, including the
administrative record;
(2) any other person may have electronic access to the full
record at the courthouse, but may have remote electronic access
only to:
(A) the docket maintained by the court; and
(B) an opinion, order, judgment, or other
disposition of the court, but not any other part of the
case file or the administrative record.
(d) Filings Made Under Seal. The court may order that a filing be
made under seal without redaction. The court may later unseal the filing
or order the person who made the filing to file a redacted version for
the public record.
(e) Protective Orders. For good cause, the court may by order in a
case:
(1) require redaction of additional information; or
(2) limit or prohibit a nonparty's remote electronic access
to a document filed with the court.
(f) Option for Additional Unredacted Filing Under Seal. A person
making a redacted filing may also file an unredacted copy under seal.
The court must retain the unredacted copy as part of the record.
(g) Option for Filing a Reference List. A filing that contains
redacted information may be filed together with a reference list that
identifies each item of redacted information and specifies an
appropriate identifier that uniquely corresponds to each item listed.
The list must be filed under seal and may be amended as of right. Any
reference in the case to a listed identifier will be construed to refer
to the corresponding item of information.
(h) Waiver of Protection of Identifiers. A person waives the
protection of Rule 5.2(a) as to the person's own information by filing
it without redaction and not under seal.
(As added Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 6
. Computing and Extending Time; Time for Motion Papers____________
(a) Computing Time. The following rules apply in computing any time
period specified in these rules or in any local rule, court order, or
statute:
(1) Day of the Event Excluded. Exclude the day of the act,
event, or default that begins the period.
(2) Exclusions from Brief Periods. Exclude intermediate
Saturdays, Sundays, and legal holidays when the period is less
than 11 days.
(3) Last Day. Include the last day of the period unless it
is a Saturday, Sunday, legal holiday, or -- if the act to be
done is filing a paper in court -- a day on which weather or
other conditions make the clerk's office inaccessible. When the
last day is excluded, the period runs until the end of the next
day that is not a Saturday, Sunday, legal holiday, or day when
the clerk's office is inaccessible.
(4) ``Legal Holiday'' Defined. As used in these rules,
``legal holiday'' means:
(A) the day set aside by statute for observing New
Year's Day, Martin Luther King Jr.'s Birthday,
Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving
Day, or Christmas Day; and
(B) any other day declared a holiday by the
President, Congress, or the state where the district
court is located.
(b) Extending Time.
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court
acts, or if a request is made, before the original time
or its extension expires; or
(B) on motion made after the time has expired if the
party failed to act because of excusable neglect.
(2) Exceptions. A court must not extend the time to act
under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and
60(b), except as those rules allow.
(c) Motions, Notices of Hearing, and Affidavits.
(1) In General. A written motion and notice of the hearing
must be served at least 5 days before the time specified for the
hearing, with the following exceptions:
(A) when the motion may be heard ex parte;
(B) when these rules set a different time; or
(C) when a court order -- which a party may, for
good cause, apply for ex parte -- sets a different time.
(2) Supporting Affidavit. Any affidavit supporting a motion
must be served with the motion. Except as Rule 59(c) provides
otherwise, any opposing affidavit must be served at least 1 day
before the hearing, unless the court permits service at another
time.
(d) Additional Time After Certain Kinds of Service. When a party may
or must act within a specified time after service and service is made
under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the
period would otherwise expire under Rule 6(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff. Aug. 1, 1983;
Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr.
26, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 25,
2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE III. PLEADINGS AND MOTIONS
Rule 7
. Pleadings Allowed; Form of Motions and Other Papers_____________
(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a
counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.
(b) Motions and Other Papers.
(1) In General. A request for a court order must be made by
motion. The motion must:
(A) be in writing unless made during a hearing or
trial;
(B) state with particularity the grounds for seeking
the order; and
(C) state the relief sought.
(2) Form. The rules governing captions and other matters of
form in pleadings apply to motions and other papers.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 7.1
. Disclosure Statement____________________________________________
(a) Who Must File; Contents. A nongovernmental corporate party must
file 2 copies of a disclosure statement that:
(1) identifies any parent corporation and any publicly held
corporation owning 10% or more of its stock; or
(2) states that there is no such corporation.
(b) Time to File; Supplemental Filing. A party must:
(1) file the disclosure statement with its first appearance,
pleading, petition, motion, response, or other request addressed
to the court; and
(2) promptly file a supplemental statement if any required
information changes.
(As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 8
. General Rules of Pleading_______________________________________
(a) Claim for Relief. A pleading that states a claim for relief must
contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has jurisdiction
and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to
each claim asserted against it; and
(B) admit or deny the allegations asserted against
it by an opposing party.
(2) Denials -- Responding to the Substance. A denial must
fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in
good faith to deny all the allegations of a pleading --
including the jurisdictional grounds -- may do so by a general
denial. A party that does not intend to deny all the allegations
must either specifically deny designated allegations or
generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in
good faith to deny only part of an allegation must admit the
part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks
knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the
effect of a denial.
(6) Effect of Failing to Deny. An allegation -- other than
one relating to the amount of damages -- is admitted if a
responsive pleading is required and the allegation is not
denied. If a responsive pleading is not required, an allegation
is considered denied or avoided.
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense,
including:
accord and satisfaction;
arbitration and award;
assumption of risk;
contributory negligence;
discharge in bankruptcy;
duress;
estoppel;
failure of consideration;
fraud;
illegality;
injury by fellow servant;
laches;
license;
payment;
release;
res judicata;
statute of frauds;
statute of limitations; and
waiver.
(2) Mistaken Designation. If a party mistakenly designates a
defense as a counterclaim, or a counterclaim as a defense, the
court must, if justice requires, treat the pleading as though it
were correctly designated, and may impose terms for doing so.
(d) Pleading to Be Concise and Direct; Alternative Statements;
Inconsistency.
(1) In General. Each allegation must be simple, concise, and
direct. No technical form is required.
(2) Alternative Statements of a Claim or Defense. A party
may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is
sufficient.
(3) Inconsistent Claims or Defenses. A party may state as
many separate claims or defenses as it has, regardless of
consistency.
(e) Construing Pleadings. Pleadings must be construed so as to do
justice.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 9
. Pleading Special Matters________________________________________
(a) Capacity or Authority to Sue; Legal Existence.
(1) In General. Except when required to show that the court
has jurisdiction, a pleading need not allege:
(A) a party's capacity to sue or be sued;
(B) a party's authority to sue or be sued in a
representative capacity; or
(C) the legal existence of an organized association
of persons that is made a party.
(2) Raising Those Issues. To raise any of those issues, a
party must do so by a specific denial, which must state any
supporting facts that are peculiarly within the party's
knowledge.
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person's mind may be alleged generally.
(c) Conditions Precedent. In pleading conditions precedent, it
suffices to allege generally that all conditions precedent have occurred
or been performed. But when denying that a condition precedent has
occurred or been performed, a party must do so with particularity.
(d) Official Document or Act. In pleading an official document or
official act, it suffices to allege that the document was legally issued
or the act legally done.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, a judicial or quasi-judicial tribunal, or a board or
officer, it suffices to plead the judgment or decision without showing
jurisdiction to render it.
(f) Time and Place. An allegation of time or place is material when
testing the sufficiency of a pleading.
(g) Special Damages. If an item of special damage is claimed, it
must be specifically stated.
(h) Admiralty or Maritime Claim.
(1) How Designated. If a claim for relief is within the
admiralty or maritime jurisdiction and also within the court's
subject-matter jurisdiction on some other ground, the pleading
may designate the claim as an admiralty or maritime claim for
purposes of Rules 14(c), 38(e), and 82 and the Supplemental
Rules for Admiralty or Maritime Claims and Asset Forfeiture
Actions. A claim cognizable only in the admiralty or maritime
jurisdiction is an admiralty or maritime claim for those
purposes, whether or not so designated.
(2) Designation for Appeal. A case that includes an
admiralty or maritime claim within this subdivision (h) is an
admiralty case within 28 U.S.C. Sec. 1292(a)(3).
(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 10
. Form of Pleadings_______________________________________________
(a) Caption; Names of Parties. Every pleading must have a caption
with the court's name, a title, a file number, and a Rule 7(a)
designation. The title of the complaint must name all the parties; the
title of other pleadings, after naming the first party on each side, may
refer generally to other parties.
(b) Paragraphs; Separate Statements. A party must state its claims
or defenses in numbered paragraphs, each limited as far as practicable
to a single set of circumstances. A later pleading may refer by number
to a paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or occurrence --
and each defense other than a denial -- must be stated in a separate
count or defense.
(c) Adoption by Reference; Exhibits. A statement in a pleading may
be adopted by reference elsewhere in the same pleading or in any other
pleading or motion. A copy of a written instrument that is an exhibit to
a pleading is a part of the pleading for all purposes.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 11
. Signing Pleadings, Motions, and Other Papers; Representations to
the Court; Sanctions____________________________________________________
(a) Signature. Every pleading, written motion, and other paper must
be signed by at least one attorney of record in the attorney's name --
or by a party personally if the party is unrepresented. The paper must
state the signer's address, e-mail address, and telephone number. Unless
a rule or statute specifically states otherwise, a pleading need not be
verified or accompanied by an affidavit. The court must strike an
unsigned paper unless the omission is promptly corrected after being
called to the attorney's or party's attention.
(b) Representations to the Court. By presenting to the court a
pleading, written motion, or other paper -- whether by signing, filing,
submitting, or later advocating it -- an attorney or unrepresented party
certifies that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on belief or a lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable
opportunity to respond, the court determines that Rule 11(b) has
been violated, the court may impose an appropriate sanction on
any attorney, law firm, or party that violated the rule or is
responsible for the violation. Absent exceptional circumstances,
a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be
made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b). The motion
must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately corrected
within 21 days after service or within another time the court
sets. If warranted, the court may award to the prevailing party
the reasonable expenses, including attorney's fees, incurred for
the motion.
(3) On the Court's Initiative. On its own, the court may
order an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated. The
sanction may include nonmonetary directives; an order to pay a
penalty into court; or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant
of part or all of the reasonable attorney's fees and other
expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not
impose a monetary sanction:
(A) against a represented party for violating Rule
11(b)(2); or
(B) on its own, unless it issued the show-cause
order under Rule 11(c)(3) before voluntary dismissal or
settlement of the claims made by or against the party
that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction
must describe the sanctioned conduct and explain the basis for
the sanction.
(d) Inapplicability to Discovery. This rule does not apply to
disclosures and discovery requests, responses, objections, and motions
under Rules 26 through 37.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 12
. Defenses and Objections: When and How Presented; Motion for
Judgment on the Pleadings; Consolidating Motions; Waiving Defenses;
Pretrial Hearing________________________________________________________
(a) Time to Serve a Responsive Pleading.
(1) In General. Unless another time is specified by this
rule or a federal statute, the time for serving a responsive
pleading is as follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with
the summons and complaint; or
(ii) if it has timely waived service under
Rule 4(d), within 60 days after the request for
a waiver was sent, or within 90 days after it
was sent to the defendant outside any judicial
district of the United States.
(B) A party must serve an answer to a counterclaim
or crossclaim within 20 days after being served with the
pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within
20 days after being served with an order to reply,
unless the order specifies a different time.
(2) United States and Its Agencies, Officers, or Employees
Sued in an Official Capacity. The United States, a United States
agency, or a United States officer or employee sued only in an
official capacity must serve an answer to a complaint,
counterclaim, or crossclaim within 60 days after service on the
United States attorney.
(3) United States Officers or Employees Sued in an
Individual Capacity. A United States officer or employee sued in
an individual capacity for an act or omission occurring in
connection with duties performed on the United States' behalf
must serve an answer to a complaint, counterclaim, or crossclaim
within 60 days after service on the officer or employee or
service on the United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different
time, serving a motion under this rule alters these periods as
follows:
(A) if the court denies the motion or postpones its
disposition until trial, the responsive pleading must be
served within 10 days after notice of the court's
action; or
(B) if the court grants a motion for a more definite
statement, the responsive pleading must be served within
10 days after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief in
any pleading must be asserted in the responsive pleading if one is
required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be
granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if
a responsive pleading is allowed. If a pleading sets out a claim for
relief that does not require a responsive pleading, an opposing party
may assert at trial any defense to that claim. No defense or objection
is waived by joining it with one or more other defenses or objections in
a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed -- but early enough not to delay trial -- a party may move for
judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to
the motion.
(e) Motion for a More Definite Statement. A party may move for a
more definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response. The motion must be made before filing a
responsive pleading and must point out the defects complained of and the
details desired. If the court orders a more definite statement and the
order is not obeyed within 10 days after notice of the order or within
the time the court sets, the court may strike the pleading or issue any
other appropriate order.
(f) Motion to Strike. The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to
the pleading or, if a response is not allowed, within 20 days
after being served with the pleading.
(g) Joining Motions.
(1) Right to Join. A motion under this rule may be joined
with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in
Rule 12(h)(2) or (3), a party that makes a motion under this
rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted
from its earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived. A party waives any defense listed
in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances
described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or
in an amendment allowed by Rule 15(a)(1) as a
matter of course.
(2) When to Raise Others. Failure to state a claim upon
which relief can be granted, to join a person required by Rule
19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule
7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction. If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.
(i) Hearing Before Trial. If a party so moves, any defense listed in
Rule 12(b)(1)-(7) -- whether made in a pleading or by motion -- and a
motion under Rule 12(c) must be heard and decided before trial unless
the court orders a deferral until trial.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
2000; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 13
. Counterclaim and Crossclaim_____________________________________
(a) Compulsory Counterclaim.
(1) In General. A pleading must state as a counterclaim any
claim that -- at the time of its service -- the pleader has
against an opposing party if the claim:
(A) arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom
the court cannot acquire jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the
subject of another pending action; or
(B) the opposing party sued on its claim by
attachment or other process that did not establish
personal jurisdiction over the pleader on that claim,
and the pleader does not assert any counterclaim under
this rule.
(b) Permissive Counterclaim. A pleading may state as a counterclaim
against an opposing party any claim that is not compulsory.
(c) Relief Sought in a Counterclaim. A counterclaim need not
diminish or defeat the recovery sought by the opposing party. It may
request relief that exceeds in amount or differs in kind from the relief
sought by the opposing party.
(d) Counterclaim Against the United States. These rules do not
expand the right to assert a counterclaim -- or to claim a credit --
against the United States or a United States officer or agency.
(e) Counterclaim Maturing or Acquired After Pleading. The court may
permit a party to file a supplemental pleading asserting a counterclaim
that matured or was acquired by the party after serving an earlier
pleading.
(f) Omitted Counterclaim. The court may permit a party to amend a
pleading to add a counterclaim if it was omitted through oversight,
inadvertence, or excusable neglect or if justice so requires.
(g) Crossclaim Against a Coparty. A pleading may state as a
crossclaim any claim by one party against a coparty if the claim arises
out of the transaction or occurrence that is the subject matter of the
original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The
crossclaim may include a claim that the coparty is or may be liable to
the crossclaimant for all or part of a claim asserted in the action
against the crossclaimant.
(h) Joining Additional Parties. Rules 19 and 20 govern the addition
of a person as a party to a counterclaim or crossclaim.
(i) Separate Trials; Separate Judgments. If the court orders
separate trials under Rule 42(b), it may enter judgment on a
counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to
do so, even if the opposing party's claims have been dismissed or
otherwise resolved.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 14
. Third-Party Practice____________________________________________
(a) When a Defending Party May Bring in a Third Party.
(1) Timing of the Summons and Complaint. A defending party
may, as third-party plaintiff, serve a summons and complaint on
a nonparty who is or may be liable to it for all or part of the
claim against it. But the third-party plaintiff must, by motion,
obtain the court's leave if it files the third-party complaint
more than 10 days after serving its original answer.
(2) Third-Party Defendant's Claims and Defenses. The person
served with the summons and third-party complaint -- the
``third-party defendant'':
(A) must assert any defense against the third-party
plaintiff's claim under Rule 12;
(B) must assert any counterclaim against the third-
party plaintiff under Rule 13(a), and may assert any
counterclaim against the third-party plaintiff under
Rule 13(b) or any crossclaim against another third-party
defendant under Rule 13(g);
(C) may assert against the plaintiff any defense
that the third-party plaintiff has to the plaintiff's
claim; and
(D) may also assert against the plaintiff any claim
arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the
third-party plaintiff.
(3) Plaintiff's Claims Against a Third-Party Defendant. The
plaintiff may assert against the third-party defendant any claim
arising out of the transaction or occurrence that is the subject
matter of the plaintiff's claim against the third-party
plaintiff. The third-party defendant must then assert any
defense under Rule 12 and any counterclaim under Rule 13(a), and
may assert any counterclaim under Rule 13(b) or any crossclaim
under Rule 13(g).
(4) Motion to Strike, Sever, or Try Separately. Any party
may move to strike the third-party claim, to sever it, or to try
it separately.
(5) Third-Party Defendant's Claim Against a Nonparty. A
third-party defendant may proceed under this rule against a
nonparty who is or may be liable to the third-party defendant
for all or part of any claim against it.
(6) Third-Party Complaint In Rem. If it is within the
admiralty or maritime jurisdiction, a third-party complaint may
be in rem. In that event, a reference in this rule to the
``summons'' includes the warrant of arrest, and a reference to
the defendant or third-party plaintiff includes, when
appropriate, a person who asserts a right under Supplemental
Rule C(6)(a)(i) in the property arrested.
(b) When a Plaintiff May Bring in a Third Party. When a claim is
asserted against a plaintiff, the plaintiff may bring in a third party
if this rule would allow a defendant to do so.
(c) Admiralty or Maritime Claim.
(1) Scope of Impleader. If a plaintiff asserts an admiralty
or maritime claim under Rule 9(h), the defendant or a person who
asserts a right under Supplemental Rule C(6)(a)(i) may, as a
third-party plaintiff, bring in a third-party defendant who may
be wholly or partly liable -- either to the plaintiff or to the
third-party plaintiff -- for remedy over, contribution, or
otherwise on account of the same transaction, occurrence, or
series of transactions or occurrences.
(2) Defending Against a Demand for Judgment for the
Plaintiff. The third-party plaintiff may demand judgment in the
plaintiff's favor against the third-party defendant. In that
event, the third-party defendant must defend under Rule 12
against the plaintiff's claim as well as the third-party
plaintiff's claim; and the action proceeds as if the plaintiff
had sued both the third-party defendant and the third-party
plaintiff.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1,
2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 15
. Amended and Supplemental Pleadings______________________________
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its
pleading once as a matter of course:
(A) before being served with a responsive pleading;
or
(B) within 20 days after serving the pleading if a
responsive pleading is not allowed and the action is not
yet on the trial calendar.
(2) Other Amendments. In all other cases, a party may amend
its pleading only with the opposing party's written consent or
the court's leave. The court should freely give leave when
justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any
required response to an amended pleading must be made within the
time remaining to respond to the original pleading or within 10
days after service of the amended pleading, whichever is later.
(b) Amendments During and After Trial.
(1) Based on an Objection at Trial. If, at trial, a party
objects that evidence is not within the issues raised in the
pleadings, the court may permit the pleadings to be amended. The
court should freely permit an amendment when doing so will aid
in presenting the merits and the objecting party fails to
satisfy the court that the evidence would prejudice that party's
action or defense on the merits. The court may grant a
continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by
the pleadings is tried by the parties' express or implied
consent, it must be treated in all respects as if raised in the
pleadings. A party may move -- at any time, even after judgment
-- to amend the pleadings to conform them to the evidence and to
raise an unpleaded issue. But failure to amend does not affect
the result of the trial of that issue.
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set
out -- or attempted to be set out -- in the original
pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that
it will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the
action would have been brought against it, but
for a mistake concerning the proper party's
identity.
(2) Notice to the United States. When the United States or a
United States officer or agency is added as a defendant by
amendment, the notice requirements of Rule 15(c)(1)(C)(i) and
(ii) are satisfied if, during the stated period, process was
delivered or mailed to the United States attorney or the United
States attorney's designee, to the Attorney General of the
United States, or to the officer or agency.
(d) Supplemental Pleadings. On motion and reasonable notice, the
court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective in
stating a claim or defense. The court may order that the opposing party
plead to the supplemental pleading within a specified time.
(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Dec. 9, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007,
eff. Dec. 1, 2007.)
Rule 16
. Pretrial Conferences; Scheduling; Management____________________
(a) Purposes of a Pretrial Conference. In any action, the court may
order the attorneys and any unrepresented parties to appear for one or
more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the
case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough
preparation; and
(5) facilitating settlement.
(b) Scheduling.
(1) Scheduling Order. Except in categories of actions
exempted by local rule, the district judge -- or a magistrate
judge when authorized by local rule -- must issue a scheduling
order:
(A) after receiving the parties' report under Rule
26(f); or
(B) after consulting with the parties' attorneys and
any unrepresented parties at a scheduling conference or
by telephone, mail, or other means.
(2) Time to Issue. The judge must issue the scheduling order
as soon as practicable, but in any event within the earlier of
120 days after any defendant has been served with the complaint
or 90 days after any defendant has appeared.
(3) Contents of the Order.
(A) Required Contents. The scheduling order must
limit the time to join other parties, amend the
pleadings, complete discovery, and file motions.
(B) Permitted Contents. The scheduling order may:
(i) modify the timing of disclosures under
Rules 26(a) and 26(e)(1);
(ii) modify the extent of discovery;
(iii) provide for disclosure or discovery of
electronically stored information;
(iv) include any agreements the parties
reach for asserting claims of privilege or of
protection as trial-preparation material after
information is produced;
(v) set dates for pretrial conferences and
for trial; and
(vi) include other appropriate matters.
(4) Modifying a Schedule. A schedule may be modified only
for good cause and with the judge's consent.
(c) Attendance and Matters for Consideration at a Pretrial
Conference.
(1) Attendance. A represented party must authorize at least
one of its attorneys to make stipulations and admissions about
all matters that can reasonably be anticipated for discussion at
a pretrial conference. If appropriate, the court may require
that a party or its representative be present or reasonably
available by other means to consider possible settlement.
(2) Matters for Consideration. At any pretrial conference,
the court may consider and take appropriate action on the
following matters:
(A) formulating and simplifying the issues, and
eliminating frivolous claims or defenses;
(B) amending the pleadings if necessary or
desirable;
(C) obtaining admissions and stipulations about
facts and documents to avoid unnecessary proof, and
ruling in advance on the admissibility of evidence;
(D) avoiding unnecessary proof and cumulative
evidence, and limiting the use of testimony under
Federal Rule of Evidence 702;
(E) determining the appropriateness and timing of
summary adjudication under Rule 56;
(F) controlling and scheduling discovery, including
orders affecting disclosures and discovery under Rule 26
and Rules 29 through 37;
(G) identifying witnesses and documents, scheduling
the filing and exchange of any pretrial briefs, and
setting dates for further conferences and for trial;
(H) referring matters to a magistrate judge or a
master;
(I) settling the case and using special procedures
to assist in resolving the dispute when authorized by
statute or local rule;
(J) determining the form and content of the pretrial
order;
(K) disposing of pending motions;
(L) adopting special procedures for managing
potentially difficult or protracted actions that may
involve complex issues, multiple parties, difficult
legal questions, or unusual proof problems;
(M) ordering a separate trial under Rule 42(b) of a
claim, counterclaim, crossclaim, third-party claim, or
particular issue;
(N) ordering the presentation of evidence early in
the trial on a manageable issue that might, on the
evidence, be the basis for a judgment as a matter of law
under Rule 50(a) or a judgment on partial findings under
Rule 52(c);
(O) establishing a reasonable limit on the time
allowed to present evidence; and
(P) facilitating in other ways the just, speedy, and
inexpensive disposition of the action.
(d) Pretrial Orders. After any conference under this rule, the court
should issue an order reciting the action taken. This order controls the
course of the action unless the court modifies it.
(e) Final Pretrial Conference and Orders. The court may hold a final
pretrial conference to formulate a trial plan, including a plan to
facilitate the admission of evidence. The conference must be held as
close to the start of trial as is reasonable, and must be attended by at
least one attorney who will conduct the trial for each party and by any
unrepresented party. The court may modify the order issued after a final
pretrial conference only to prevent manifest injustice.
(f) Sanctions.
(1) In General. On motion or on its own, the court may issue
any just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other
pretrial conference;
(B) is substantially unprepared to participate -- or
does not participate in good faith -- in the conference;
or
(C) fails to obey a scheduling or other pretrial
order.
(2) Imposing Fees and Costs. Instead of or in addition to
any other sanction, the court must order the party, its
attorney, or both to pay the reasonable expenses -- including
attorney's fees -- incurred because of any noncompliance with
this rule, unless the noncompliance was substantially justified
or other circumstances make an award of expenses unjust.
(As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 12, 2006, eff. Dec. 1,
2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE IV. PARTIES
Rule 17
. Plaintiff and Defendant; Capacity; Public Officers______________
(a) Real Party in Interest.
(1) Designation in General. An action must be prosecuted in
the name of the real party in interest. The following may sue in
their own names without joining the person for whose benefit the
action is brought:
(A) an executor;
(B) an administrator;
(C) a guardian;
(D) a bailee;
(E) a trustee of an express trust;
(F) a party with whom or in whose name a contract
has been made for another's benefit; and
(G) a party authorized by statute.
(2) Action in the Name of the United States for Another's
Use or Benefit. When a federal statute so provides, an action
for another's use or benefit must be brought in the name of the
United States.
(3) Joinder of the Real Party in Interest. The court may not
dismiss an action for failure to prosecute in the name of the
real party in interest until, after an objection, a reasonable
time has been allowed for the real party in interest to ratify,
join, or be substituted into the action. After ratification,
joinder, or substitution, the action proceeds as if it had been
originally commenced by the real party in interest.
(b) Capacity to Sue or Be Sued. Capacity to sue or be sued is
determined as follows:
(1) for an individual who is not acting in a representative
capacity, by the law of the individual's domicile;
(2) for a corporation, by the law under which it was
organized; and
(3) for all other parties, by the law of the state where the
court is located, except that:
(A) a partnership or other unincorporated
association with no such capacity under that state's law
may sue or be sued in its common name to enforce a
substantive right existing under the United States
Constitution or laws; and
(B) 28 U.S.C. Sec. Sec. 754 and 959(a) govern the
capacity of a receiver appointed by a United States
court to sue or be sued in a United States court.
(c) Minor or Incompetent Person.
(1) With a Representative. The following representatives may
sue or defend on behalf of a minor or an incompetent person:
(A) a general guardian;
(B) a committee;
(C) a conservator; or
(D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent
person who does not have a duly appointed representative may sue
by a next friend or by a guardian ad litem. The court must
appoint a guardian ad litem -- or issue another appropriate
order -- to protect a minor or incompetent person who is
unrepresented in an action.
(d) Public Officer's Title and Name. A public officer who sues or is
sued in an official capacity may be designated by official title rather
than by name, but the court may order that the officer's name be added.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988; Apr. 30, 2007,
eff. Dec. 1, 2007.)
Rule 18
. Joinder of Claims_______________________________________________
(a) In General. A party asserting a claim, counterclaim, crossclaim,
or third-party claim may join, as independent or alternative claims, as
many claims as it has against an opposing party.
(b) Joinder of Contingent Claims. A party may join two claims even
though one of them is contingent on the disposition of the other; but
the court may grant relief only in accordance with the parties' relative
substantive rights. In particular, a plaintiff may state a claim for
money and a claim to set aside a conveyance that is fraudulent as to
that plaintiff, without first obtaining a judgment for the money.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 19
. Required Joinder of Parties_____________________________________
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of subject-
matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot
accord complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that disposing
of the action in the person's absence may:
(i) as a practical matter impair or impede
the person's ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of
the interest.
(2) Joinder by Court Order. If a person has not been joined
as required, the court must order that the person be made a
party. A person who refuses to join as a plaintiff may be made
either a defendant or, in a proper case, an involuntary
plaintiff.
(3) Venue. If a joined party objects to venue and the
joinder would make venue improper, the court must dismiss that
party.
(b) When Joinder Is Not Feasible. If a person who is required to be
joined if feasible cannot be joined, the court must determine whether,
in equity and good conscience, the action should proceed among the
existing parties or should be dismissed. The factors for the court to
consider include:
(1) the extent to which a judgment rendered in the person's
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or
avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence
would be adequate; and
(4) whether the plaintiff would have an adequate remedy if
the action were dismissed for nonjoinder.
(c) Pleading the Reasons for Nonjoinder. When asserting a claim for
relief, a party must state:
(1) the name, if known, of any person who is required to be
joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) Exception for Class Actions. This rule is subject to Rule 23.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 20
. Permissive Joinder of Parties___________________________________
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as plaintiffs
if:
(A) they assert any right to relief jointly,
severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or
series of transactions or occurrences; and
(B) any question of law or fact common to all
plaintiffs will arise in the action.
(2) Defendants. Persons -- as well as a vessel, cargo, or
other property subject to admiralty process in rem -- may be
joined in one action as defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant
need be interested in obtaining or defending against all the
relief demanded. The court may grant judgment to one or more
plaintiffs according to their rights, and against one or more
defendants according to their liabilities.
(b) Protective Measures. The court may issue orders -- including an
order for separate trials -- to protect a party against embarrassment,
delay, expense, or other prejudice that arises from including a person
against whom the party asserts no claim and who asserts no claim against
the party.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 21
. Misjoinder and Nonjoinder of Parties____________________________
Misjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add or
drop a party. The court may also sever any claim against a party.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 22
. Interpleader____________________________________________________
(a) Grounds.
(1) By a Plaintiff. Persons with claims that may expose a
plaintiff to double or multiple liability may be joined as
defendants and required to interplead. Joinder for interpleader
is proper even though:
(A) the claims of the several claimants, or the
titles on which their claims depend, lack a common
origin or are adverse and independent rather than
identical; or
(B) the plaintiff denies liability in whole or in
part to any or all of the claimants.
(2) By a Defendant. A defendant exposed to similar liability
may seek interpleader through a crossclaim or counterclaim.
(b) Relation to Other Rules and Statutes. This rule supplements --
and does not limit -- the joinder of parties allowed by Rule 20. The
remedy this rule provides is in addition to -- and does not supersede or
limit -- the remedy provided by 28 U.S.C. Sec. Sec. 1335, 1397, and
2361. An action under those statutes must be conducted under these
rules.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23
. Class Actions___________________________________________________
(a) Prerequisites. One or more members of a class may sue or be sued
as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if Rule
23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with
respect to individual class members that would establish
incompatible standards of conduct for the party opposing
the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members not
parties to the individual adjudications or would
substantially impair or impede their ability to protect
their interests;
(2) the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common
to class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or against
class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a class
action.
(c) Certification Order; Notice to Class Members; Judgment; Issues
Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time
after a person sues or is sued as a class
representative, the court must determine by order
whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel. An
order that certifies a class action must define the
class and the class claims, issues, or defenses, and
must appoint class counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that
grants or denies class certification may be altered or
amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class
certified under Rule 23(b)(1) or (b)(2), the court may
direct appropriate notice to the class.
(B) For (b)(3) Classes. For any class certified
under Rule 23(b)(3), the court must direct to class
members the best notice that is practicable under the
circumstances, including individual notice to all
members who can be identified through reasonable effort.
The notice must clearly and concisely state in plain,
easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an
appearance through an attorney if the member so
desires;
(v) that the court will exclude from the
class any member who requests exclusion;
(vi) the time and manner for requesting
exclusion; and
(vii) the binding effect of a class judgment
on members under Rule 23(c)(3).
(3) Judgment. Whether or not favorable to the class, the
judgment in a class action must:
(A) for any class certified under Rule 23(b)(1) or
(b)(2), include and describe those whom the court finds
to be class members; and
(B) for any class certified under Rule 23(b)(3),
include and specify or describe those to whom the Rule
23(c)(2) notice was directed, who have not requested
exclusion, and whom the court finds to be class members.
(4) Particular Issues. When appropriate, an action may be
brought or maintained as a class action with respect to
particular issues.
(5) Subclasses. When appropriate, a class may be divided
into subclasses that are each treated as a class under this
rule.
(d) Conducting the Action.
(1) In General. In conducting an action under this rule, the
court may issue orders that:
(A) determine the course of proceedings or prescribe
measures to prevent undue repetition or complication in
presenting evidence or argument;
(B) require -- to protect class members and fairly
conduct the action -- giving appropriate notice to some
or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify
whether they consider the representation fair
and adequate, to intervene and present claims or
defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties
or on intervenors;
(D) require that the pleadings be amended to
eliminate allegations about representation of absent
persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders. An order under Rule
23(d)(1) may be altered or amended from time to time and may be
combined with an order under Rule 16.
(e) Settlement, Voluntary Dismissal, or Compromise. The claims,
issues, or defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court's approval. The following
procedures apply to a proposed settlement, voluntary dismissal, or
compromise:
(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is fair,
reasonable, and adequate.
(3) The parties seeking approval must file a statement
identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule
23(b)(3), the court may refuse to approve a settlement unless it
affords a new opportunity to request exclusion to individual
class members who had an earlier opportunity to request
exclusion but did not do so.
(5) Any class member may object to the proposal if it
requires court approval under this subdivision (e); the
objection may be withdrawn only with the court's approval.
(f) Appeals. A court of appeals may permit an appeal from an order
granting or denying class-action certification under this rule if a
petition for permission to appeal is filed with the circuit clerk within
10 days after the order is entered. An appeal does not stay proceedings
in the district court unless the district judge or the court of appeals
so orders.
(g) Class Counsel.
(1) Appointing Class Counsel. Unless a statute provides
otherwise, a court that certifies a class must appoint class
counsel. In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying
or investigating potential claims in the action;
(ii) counsel's experience in handling class
actions, other complex litigation, and the types
of claims asserted in the action;
(iii) counsel's knowledge of the applicable
law; and
(iv) the resources that counsel will commit
to representing the class;
(B) may consider any other matter pertinent to
counsel's ability to fairly and adequately represent the
interests of the class;
(C) may order potential class counsel to provide
information on any subject pertinent to the appointment
and to propose terms for attorney's fees and nontaxable
costs;
(D) may include in the appointing order provisions
about the award of attorney's fees or nontaxable costs
under Rule 23(h); and
(E) may make further orders in connection with the
appointment.
(2) Standard for Appointing Class Counsel. When one
applicant seeks appointment as class counsel, the court may
appoint that applicant only if the applicant is adequate under
Rule 23(g)(1) and (4). If more than one adequate applicant seeks
appointment, the court must appoint the applicant best able to
represent the interests of the class.
(3) Interim Counsel. The court may designate interim counsel
to act on behalf of a putative class before determining whether
to certify the action as a class action.
(4) Duty of Class Counsel. Class counsel must fairly and
adequately represent the interests of the class.
(h) Attorney's Fees and Nontaxable Costs. In a certified class
action, the court may award reasonable attorney's fees and nontaxable
costs that are authorized by law or by the parties' agreement. The
following procedures apply:
(1) A claim for an award must be made by motion under Rule
54(d)(2), subject to the provisions of this subdivision (h), at
a time the court sets. Notice of the motion must be served on
all parties and, for motions by class counsel, directed to class
members in a reasonable manner.
(2) A class member, or a party from whom payment is sought,
may object to the motion.
(3) The court may hold a hearing and must find the facts and
state its legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the
award to a special master or a magistrate judge, as provided in
Rule 54(d)(2)(D).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff. Dec. 1,
2003; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23.1
. Derivative Actions______________________________________________
(a) Prerequisites. This rule applies when one or more shareholders
or members of a corporation or an unincorporated association bring a
derivative action to enforce a right that the corporation or association
may properly assert but has failed to enforce. The derivative action may
not be maintained if it appears that the plaintiff does not fairly and
adequately represent the interests of shareholders or members who are
similarly situated in enforcing the right of the corporation or
association.
(b) Pleading Requirements. The complaint must be verified and must:
(1) allege that the plaintiff was a shareholder or member at
the time of the transaction complained of, or that the
plaintiff's share or membership later devolved on it by
operation of law;
(2) allege that the action is not a collusive one to confer
jurisdiction that the court would otherwise lack; and
(3) state with particularity:
(A) any effort by the plaintiff to obtain the
desired action from the directors or comparable
authority and, if necessary, from the shareholders or
members; and
(B) the reasons for not obtaining the action or not
making the effort.
(c) Settlement, Dismissal, and Compromise. A derivative action may
be settled, voluntarily dismissed, or compromised only with the court's
approval. Notice of a proposed settlement, voluntary dismissal, or
compromise must be given to shareholders or members in the manner that
the court orders.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 23.2
. Actions Relating to Unincorporated Associations_________________
This rule applies to an action brought by or against the members of
an unincorporated association as a class by naming certain members as
representative parties. The action may be maintained only if it appears
that those parties will fairly and adequately protect the interests of
the association and its members. In conducting the action, the court may
issue any appropriate orders corresponding with those in Rule 23(d), and
the procedure for settlement, voluntary dismissal, or compromise must
correspond with the procedure in Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 24
. Intervention____________________________________________________
(a) Intervention of Right. On timely motion, the court must permit
anyone to intervene who:
(1) is given an unconditional right to intervene by a
federal statute; or
(2) claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter
impair or impede the movant's ability to protect its interest,
unless existing parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit
anyone to intervene who:
(A) is given a conditional right to intervene by a
federal statute; or
(B) has a claim or defense that shares with the main
action a common question of law or fact.
(2) By a Government Officer or Agency. On timely motion, the
court may permit a federal or state governmental officer or
agency to intervene if a party's claim or defense is based on:
(A) a statute or executive order administered by the
officer or agency; or
(B) any regulation, order, requirement, or agreement
issued or made under the statute or executive order.
(3) Delay or Prejudice. In exercising its discretion, the
court must consider whether the intervention will unduly delay
or prejudice the adjudication of the original parties' rights.
(c) Notice and Pleading Required. A motion to intervene must be
served on the parties as provided in Rule 5. The motion must state the
grounds for intervention and be accompanied by a pleading that sets out
the claim or defense for which intervention is sought.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1,
1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 25
. Substitution of Parties_________________________________________
(a) Death.
(1) Substitution if the Claim Is Not Extinguished. If a
party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for
substitution may be made by any party or by the decedent's
successor or representative. If the motion is not made within 90
days after service of a statement noting the death, the action
by or against the decedent must be dismissed.
(2) Continuation Among the Remaining Parties. After a
party's death, if the right sought to be enforced survives only
to or against the remaining parties, the action does not abate,
but proceeds in favor of or against the remaining parties. The
death should be noted on the record.
(3) Service. A motion to substitute, together with a notice
of hearing, must be served on the parties as provided in Rule 5
and on nonparties as provided in Rule 4. A statement noting
death must be served in the same manner. Service may be made in
any judicial district.
(b) Incompetency. If a party becomes incompetent, the court may, on
motion, permit the action to be continued by or against the party's
representative. The motion must be served as provided in Rule 25(a)(3).
(c) Transfer of Interest. If an interest is transferred, the action
may be continued by or against the original party unless the court, on
motion, orders the transferee to be substituted in the action or joined
with the original party. The motion must be served as provided in Rule
25(a)(3).
(d) Public Officers; Death or Separation from Office. An action does
not abate when a public officer who is a party in an official capacity
dies, resigns, or otherwise ceases to hold office while the action is
pending. The officer's successor is automatically substituted as a
party. Later proceedings should be in the substituted party's name, but
any misnomer not affecting the parties' substantial rights must be
disregarded. The court may order substitution at any time, but the
absence of such an order does not affect the substitution.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July
19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE V. DISCLOSURES AND DISCOVERY
Rule 26
. Duty to Disclose; General Provisions Governing Discovery________
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule
26(a)(1)(B) or as otherwise stipulated or ordered by the
court, a party must, without awaiting a discovery
request, provide to the other parties:
(i) the name and, if known, the address and
telephone number of each individual likely to
have discoverable information -- along with the
subjects of that information -- that the
disclosing party may use to support its claims
or defenses, unless the use would be solely for
impeachment;
(ii) a copy -- or a description by category
and location -- of all documents, electronically
stored information, and tangible things that the
disclosing party has in its possession, custody,
or control and may use to support its claims or
defenses, unless the use would be solely for
impeachment;
(iii) a computation of each category of
damages claimed by the disclosing party -- who
must also make available for inspection and
copying as under Rule 34 the documents or other
evidentiary material, unless privileged or
protected from disclosure, on which each
computation is based, including materials
bearing on the nature and extent of injuries
suffered; and
(iv) for inspection and copying as under
Rule 34, any insurance agreement under which an
insurance business may be liable to satisfy all
or part of a possible judgment in the action or
to indemnify or reimburse for payments made to
satisfy the judgment.
(B) Proceedings Exempt from Initial Disclosure. The
following proceedings are exempt from initial
disclosure:
(i) an action for review on an
administrative record;
(ii) a forfeiture action in rem arising from
a federal statute;
(iii) a petition for habeas corpus or any
other proceeding to challenge a criminal
conviction or sentence;
(iv) an action brought without an attorney
by a person in the custody of the United States,
a state, or a state subdivision;
(v) an action to enforce or quash an
administrative summons or subpoena;
(vi) an action by the United States to
recover benefit payments;
(vii) an action by the United States to
collect on a student loan guaranteed by the
United States;
(viii) a proceeding ancillary to a
proceeding in another court; and
(ix) an action to enforce an arbitration
award.
(C) Time for Initial Disclosures -- In General. A
party must make the initial disclosures at or within 14
days after the parties' Rule 26(f) conference unless a
different time is set by stipulation or court order, or
unless a party objects during the conference that
initial disclosures are not appropriate in this action
and states the objection in the proposed discovery plan.
In ruling on the objection, the court must determine
what disclosures, if any, are to be made and must set
the time for disclosure.
(D) Time for Initial Disclosures -- For Parties
Served or Joined Later. A party that is first served or
otherwise joined after the Rule 26(f) conference must
make the initial disclosures within 30 days after being
served or joined, unless a different time is set by
stipulation or court order.
(E) Basis for Initial Disclosure; Unacceptable
Excuses. A party must make its initial disclosures based
on the information then reasonably available to it. A
party is not excused from making its disclosures because
it has not fully investigated the case or because it
challenges the sufficiency of another party's
disclosures or because another party has not made its
disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures
required by Rule 26(a)(1), a party must disclose to the
other parties the identity of any witness it may use at
trial to present evidence under Federal Rule of Evidence
702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be
accompanied by a written report -- prepared and signed
by the witness -- if the witness is one retained or
specially employed to provide expert testimony in the
case or one whose duties as the party's employee
regularly involve giving expert testimony. The report
must contain:
(i) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
(ii) the data or other information
considered by the witness in forming them;
(iii) any exhibits that will be used to
summarize or support them;
(iv) the witness's qualifications, including
a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which,
during the previous 4 years, the witness
testified as an expert at trial or by
deposition; and
(vi) a statement of the compensation to be
paid for the study and testimony in the case.
(C) Time to Disclose Expert Testimony. A party must
make these disclosures at the times and in the sequence
that the court orders. Absent a stipulation or a court
order, the disclosures must be made:
(i) at least 90 days before the date set for
trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to
contradict or rebut evidence on the same subject
matter identified by another party under Rule
26(a)(2)(B), within 30 days after the other
party's disclosure.
(D) Supplementing the Disclosure. The parties must
supplement these disclosures when required under Rule
26(e).
(3) Pretrial Disclosures.
(A) In General. In addition to the disclosures
required by Rule 26(a)(1) and (2), a party must provide
to the other parties and promptly file the following
information about the evidence that it may present at
trial other than solely for impeachment:
(i) the name and, if not previously
provided, the address and telephone number of
each witness -- separately identifying those the
party expects to present and those it may call
if the need arises;
(ii) the designation of those witnesses
whose testimony the party expects to present by
deposition and, if not taken stenographically, a
transcript of the pertinent parts of the
deposition; and
(iii) an identification of each document or
other exhibit, including summaries of other
evidence -- separately identifying those items
the party expects to offer and those it may
offer if the need arises.
(B) Time for Pretrial Disclosures; Objections.
Unless the court orders otherwise, these disclosures
must be made at least 30 days before trial. Within 14
days after they are made, unless the court sets a
different time, a party may serve and promptly file a
list of the following objections: any objections to the
use under Rule 32(a) of a deposition designated by
another party under Rule 26(a)(3)(A)(ii); and any
objection, together with the grounds for it, that may be
made to the admissibility of materials identified under
Rule 26(a)(3)(A)(iii). An objection not so made --
except for one under Federal Rule of Evidence 402 or 403
-- is waived unless excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise,
all disclosures under Rule 26(a) must be in writing, signed, and
served.
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court
order, the scope of discovery is as follows: Parties may obtain
discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense -- including the existence,
description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location
of persons who know of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need
not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by
Rule 26(b)(2)(C).
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter
the limits in these rules on the number of depositions
and interrogatories or on the length of depositions
under Rule 30. By order or local rule, the court may
also limit the number of requests under Rule 36.
(B) Specific Limitations on Electronically Stored
Information. A party need not provide discovery of
electronically stored information from sources that the
party identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery or
for a protective order, the party from whom discovery is
sought must show that the information is not reasonably
accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order
discovery from such sources if the requesting party
shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the
discovery.
(C) When Required. On motion or on its own, the
court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it
determines that:
(i) the discovery sought is unreasonably
cumulative or duplicative, or can be obtained
from some other source that is more convenient,
less burdensome, or less expensive;
(ii) the party seeking discovery has had
ample opportunity to obtain the information by
discovery in the action; or
(iii) the burden or expense of the proposed
discovery outweighs its likely benefit,
considering the needs of the case, the amount in
controversy, the parties' resources, the
importance of the issues at stake in the action,
and the importance of the discovery in resolving
the issues.
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a
party may not discover documents and tangible things
that are prepared in anticipation of litigation or for
trial by or for another party or its representative
(including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to
Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under
Rule 26(b)(1); and
(ii) the party shows that it has substantial
need for the materials to prepare its case and
cannot, without undue hardship, obtain their
substantial equivalent by other means.
(B) Protection Against Disclosure. If the court
orders discovery of those materials, it must protect
against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party's
attorney or other representative concerning the
litigation.
(C) Previous Statement. Any party or other person
may, on request and without the required showing, obtain
the person's own previous statement about the action or
its subject matter. If the request is refused, the
person may move for a court order, and Rule 37(a)(5)
applies to the award of expenses. A previous statement
is either:
(i) a written statement that the person has
signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic,
mechanical, electrical, or other recording -- or
a transcription of it -- that recites
substantially verbatim the person's oral
statement.
(4) Trial Preparation: Experts.
(A) Expert Who May Testify. A party may depose any
person who has been identified as an expert whose
opinions may be presented at trial. If Rule 26(a)(2)(B)
requires a report from the expert, the deposition may be
conducted only after the report is provided.
(B) Expert Employed Only for Trial Preparation.
Ordinarily, a party may not, by interrogatories or
deposition, discover facts known or opinions held by an
expert who has been retained or specially employed by
another party in anticipation of litigation or to
prepare for trial and who is not expected to be called
as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances
under which it is impracticable for the party to
obtain facts or opinions on the same subject by
other means.
(C) Payment. Unless manifest injustice would result,
the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time
spent in responding to discovery under Rule
26(b)(4)(A) or (B); and
(ii) for discovery under (B), also pay the
other party a fair portion of the fees and
expenses it reasonably incurred in obtaining the
expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial-Preparation
Materials.
(A) Information Withheld. When a party withholds
information otherwise discoverable by claiming that the
information is privileged or subject to protection as
trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents,
communications, or tangible things not produced
or disclosed -- and do so in a manner that,
without revealing information itself privileged
or protected, will enable other parties to
assess the claim.
(B) Information Produced. If information produced in
discovery is subject to a claim of privilege or of
protection as trial-preparation material, the party
making the claim may notify any party that received the
information of the claim and the basis for it. After
being notified, a party must promptly return, sequester,
or destroy the specified information and any copies it
has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to
retrieve the information if the party disclosed it
before being notified; and may promptly present the
information to the court under seal for a determination
of the claim. The producing party must preserve the
information until the claim is resolved.
(c) Protective Orders.
(1) In General. A party or any person from whom discovery is
sought may move for a protective order in the court where the
action is pending -- or as an alternative on matters relating to
a deposition, in the court for the district where the deposition
will be taken. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute
without court action. The court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
one or more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for
the disclosure or discovery;
(C) prescribing a discovery method other than the
one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain
matters;
(E) designating the persons who may be present while
the discovery is conducted;
(F) requiring that a deposition be sealed and opened
only on court order;
(G) requiring that a trade secret or other
confidential research, development, or commercial
information not be revealed or be revealed only in a
specified way; and
(H) requiring that the parties simultaneously file
specified documents or information in sealed envelopes,
to be opened as the court directs.
(2) Ordering Discovery. If a motion for a protective order
is wholly or partly denied, the court may, on just terms, order
that any party or person provide or permit discovery.
(3) Awarding Expenses. Rule 37(a)(5) applies to the award of
expenses.
(d) Timing and Sequence of Discovery.
(1) Timing. A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f),
except in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B), or when authorized by these rules, by
stipulation, or by court order.
(2) Sequence. Unless, on motion, the court orders otherwise
for the parties' and witnesses' convenience and in the interests
of justice:
(A) methods of discovery may be used in any
sequence; and
(B) discovery by one party does not require any
other party to delay its discovery.
(e) Supplementing Disclosures and Responses.
(1) In General. A party who has made a disclosure under Rule
26(a) -- or who has responded to an interrogatory, request for
production, or request for admission -- must supplement or
correct its disclosure or response:
(A) in a timely manner if the party learns that in
some material respect the disclosure or response is
incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known
to the other parties during the discovery process or in
writing; or
(B) as ordered by the court.
(2) Expert Witness. For an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party's duty to supplement
extends both to information included in the report and to
information given during the expert's deposition. Any additions
or changes to this information must be disclosed by the time the
party's pretrial disclosures under Rule 26(a)(3) are due.
(f) Conference of the Parties; Planning for Discovery.
(1) Conference Timing. Except in a proceeding exempted from
initial disclosure under Rule 26(a)(1)(B) or when the court
orders otherwise, the parties must confer as soon as practicable
-- and in any event at least 21 days before a scheduling
conference is to be held or a scheduling order is due under Rule
16(b).
(2) Conference Content; Parties' Responsibilities. In
conferring, the parties must consider the nature and basis of
their claims and defenses and the possibilities for promptly
settling or resolving the case; make or arrange for the
disclosures required by Rule 26(a)(1); discuss any issues about
preserving discoverable information; and develop a proposed
discovery plan. The attorneys of record and all unrepresented
parties that have appeared in the case are jointly responsible
for arranging the conference, for attempting in good faith to
agree on the proposed discovery plan, and for submitting to the
court within 14 days after the conference a written report
outlining the plan. The court may order the parties or attorneys
to attend the conference in person.
(3) Discovery Plan. A discovery plan must state the parties'
views and proposals on:
(A) what changes should be made in the timing, form,
or requirement for disclosures under Rule 26(a),
including a statement of when initial disclosures were
made or will be made;
(B) the subjects on which discovery may be needed,
when discovery should be completed, and whether
discovery should be conducted in phases or be limited to
or focused on particular issues;
(C) any issues about disclosure or discovery of
electronically stored information, including the form or
forms in which it should be produced;
(D) any issues about claims of privilege or of
protection as trial-preparation materials, including --
if the parties agree on a procedure to assert these
claims after production -- whether to ask the court to
include their agreement in an order;
(E) what changes should be made in the limitations
on discovery imposed under these rules or by local rule,
and what other limitations should be imposed; and
(F) any other orders that the court should issue
under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its
expedited schedule for Rule 16(b) conferences, a court may by
local rule:
(A) require the parties' conference to occur less
than 21 days before the scheduling conference is held or
a scheduling order is due under Rule 16(b); and
(B) require the written report outlining the
discovery plan to be filed less than 14 days after the
parties' conference, or excuse the parties from
submitting a written report and permit them to report
orally on their discovery plan at the Rule 16(b)
conference.
(g) Signing Disclosures and Discovery Requests, Responses, and
Objections.
(1) Signature Required; Effect of Signature. Every
disclosure under Rule 26(a)(1) or (a)(3) and every discovery
request, response, or objection must be signed by at least one
attorney of record in the attorney's own name -- or by the party
personally, if unrepresented -- and must state the signer's
address, e-mail address, and telephone number. By signing, an
attorney or party certifies that to the best of the person's
knowledge, information, and belief formed after a reasonable
inquiry:
(A) with respect to a disclosure, it is complete and
correct as of the time it is made; and
(B) with respect to a discovery request, response,
or objection, it is:
(i) consistent with these rules and
warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing
existing law, or for establishing new law;
(ii) not interposed for any improper
purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of
litigation; and
(iii) neither unreasonable nor unduly
burdensome or expensive, considering the needs
of the case, prior discovery in the case, the
amount in controversy, and the importance of the
issues at stake in the action.
(2) Failure to Sign. Other parties have no duty to act on an
unsigned disclosure, request, response, or objection until it is
signed, and the court must strike it unless a signature is
promptly supplied after the omission is called to the attorney's
or party's attention.
(3) Sanction for Improper Certification. If a certification
violates this rule without substantial justification, the court,
on motion or on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer was acting, or
both. The sanction may include an order to pay the reasonable
expenses, including attorney's fees, caused by the violation.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1,
1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1,
1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 27
. Depositions to Perpetuate Testimony_____________________________
(a) Before an Action Is Filed.
(1) Petition. A person who wants to perpetuate testimony
about any matter cognizable in a United States court may file a
verified petition in the district court for the district where
any expected adverse party resides. The petition must ask for an
order authorizing the petitioner to depose the named persons in
order to perpetuate their testimony. The petition must be titled
in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an
action cognizable in a United States court but cannot
presently bring it or cause it to be brought;
(B) the subject matter of the expected action and
the petitioner's interest;
(C) the facts that the petitioner wants to establish
by the proposed testimony and the reasons to perpetuate
it;
(D) the names or a description of the persons whom
the petitioner expects to be adverse parties and their
addresses, so far as known; and
(E) the name, address, and expected substance of the
testimony of each deponent.
(2) Notice and Service. At least 20 days before the hearing
date, the petitioner must serve each expected adverse party with
a copy of the petition and a notice stating the time and place
of the hearing. The notice may be served either inside or
outside the district or state in the manner provided in Rule 4.
If that service cannot be made with reasonable diligence on an
expected adverse party, the court may order service by
publication or otherwise. The court must appoint an attorney to
represent persons not served in the manner provided in Rule 4
and to cross-examine the deponent if an unserved person is not
otherwise represented. If any expected adverse party is a minor
or is incompetent, Rule 17(c) applies.
(3) Order and Examination. If satisfied that perpetuating
the testimony may prevent a failure or delay of justice, the
court must issue an order that designates or describes the
persons whose depositions may be taken, specifies the subject
matter of the examinations, and states whether the depositions
will be taken orally or by written interrogatories. The
depositions may then be taken under these rules, and the court
may issue orders like those authorized by Rules 34 and 35. A
reference in these rules to the court where an action is pending
means, for purposes of this rule, the court where the petition
for the deposition was filed.
(4) Using the Deposition. A deposition to perpetuate
testimony may be used under Rule 32(a) in any later-filed
district-court action involving the same subject matter if the
deposition either was taken under these rules or, although not
so taken, would be admissible in evidence in the courts of the
state where it was taken.
(b) Pending Appeal.
(1) In General. The court where a judgment has been rendered
may, if an appeal has been taken or may still be taken, permit a
party to depose witnesses to perpetuate their testimony for use
in the event of further proceedings in that court.
(2) Motion. The party who wants to perpetuate testimony may
move for leave to take the depositions, on the same notice and
service as if the action were pending in the district court. The
motion must show:
(A) the name, address, and expected substance of the
testimony of each deponent; and
(B) the reasons for perpetuating the testimony.
(3) Court Order. If the court finds that perpetuating the
testimony may prevent a failure or delay of justice, the court
may permit the depositions to be taken and may issue orders like
those authorized by Rules 34 and 35. The depositions may be
taken and used as any other deposition taken in a pending
district-court action.
(c) Perpetuation by an Action. This rule does not limit a court's
power to entertain an action to perpetuate testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 1, 1971, eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 28
. Persons Before Whom Depositions May Be Taken____________________
(a) Within the United States.
(1) In General. Within the United States or a territory or
insular possession subject to United States jurisdiction, a
deposition must be taken before:
(A) an officer authorized to administer oaths either
by federal law or by the law in the place of
examination; or
(B) a person appointed by the court where the action
is pending to administer oaths and take testimony.
(2) Definition of ``Officer.'' The term ``officer'' in Rules
30, 31, and 32 includes a person appointed by the court under
this rule or designated by the parties under Rule 29(a).
(b) In a Foreign Country.
(1) In General. A deposition may be taken in a foreign
country:
(A) under an applicable treaty or convention;
(B) under a letter of request, whether or not
captioned a ``letter rogatory'';
(C) on notice, before a person authorized to
administer oaths either by federal law or by the law in
the place of examination; or
(D) before a person commissioned by the court to
administer any necessary oath and take testimony.
(2) Issuing a Letter of Request or a Commission. A letter of
request, a commission, or both may be issued:
(A) on appropriate terms after an application and
notice of it; and
(B) without a showing that taking the deposition in
another manner is impracticable or inconvenient.
(3) Form of a Request, Notice, or Commission. When a letter
of request or any other device is used according to a treaty or
convention, it must be captioned in the form prescribed by that
treaty or convention. A letter of request may be addressed ``To
the Appropriate Authority in [name of country].'' A deposition
notice or a commission must designate by name or descriptive
title the person before whom the deposition is to be taken.
(4) Letter of Request -- Admitting Evidence. Evidence
obtained in response to a letter of request need not be excluded
merely because it is not a verbatim transcript, because the
testimony was not taken under oath, or because of any similar
departure from the requirements for depositions taken within the
United States.
(c) Disqualification. A deposition must not be taken before a person
who is any party's relative, employee, or attorney; who is related to or
employed by any party's attorney; or who is financially interested in
the action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 1, 2007, eff. Dec. 1,
2007.)
Rule 29
. Stipulations About Discovery Procedure__________________________
Unless the court orders otherwise, the parties may stipulate that:
(a) a deposition may be taken before any person, at any time or
place, on any notice, and in the manner specified -- in which event it
may be used in the same way as any other deposition; and
(b) other procedures governing or limiting discovery be modified --
but a stipulation extending the time for any form of discovery must have
court approval if it would interfere with the time set for completing
discovery, for hearing a motion, or for trial.
(As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff. Dec.
1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 30
. Depositions by Oral Examination_________________________________
(a) When a Deposition May Be Taken.
(1) Without Leave. A party may, by oral questions, depose
any person, including a party, without leave of court except as
provided in Rule 30(a)(2). The deponent's attendance may be
compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule
26(b)(2):
(A) if the parties have not stipulated to the
deposition and:
(i) the deposition would result in more than
10 depositions being taken under this rule or
Rule 31 by the plaintiffs, or by the defendants,
or by the third-party defendants;
(ii) the deponent has already been deposed
in the case; or
(iii) the party seeks to take the deposition
before the time specified in Rule 26(d), unless
the party certifies in the notice, with
supporting facts, that the deponent is expected
to leave the United States and be unavailable
for examination in this country after that time;
or
(B) if the deponent is confined in prison.
(b) Notice of the Deposition; Other Formal Requirements.
(1) Notice in General. A party who wants to depose a person
by oral questions must give reasonable written notice to every
other party. The notice must state the time and place of the
deposition and, if known, the deponent's name and address. If
the name is unknown, the notice must provide a general
description sufficient to identify the person or the particular
class or group to which the person belongs.
(2) Producing Documents. If a subpoena duces tecum is to be
served on the deponent, the materials designated for production,
as set out in the subpoena, must be listed in the notice or in
an attachment. The notice to a party deponent may be accompanied
by a request under Rule 34 to produce documents and tangible
things at the deposition.
(3) Method of Recording.
(A) Method Stated in the Notice. The party who
notices the deposition must state in the notice the
method for recording the testimony. Unless the court
orders otherwise, testimony may be recorded by audio,
audiovisual, or stenographic means. The noticing party
bears the recording costs. Any party may arrange to
transcribe a deposition.
(B) Additional Method. With prior notice to the
deponent and other parties, any party may designate
another method for recording the testimony in addition
to that specified in the original notice. That party
bears the expense of the additional record or transcript
unless the court orders otherwise.
(4) By Remote Means. The parties may stipulate -- or the
court may on motion order -- that a deposition be taken by
telephone or other remote means. For the purpose of this rule
and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes
place where the deponent answers the questions.
(5) Officer's Duties.
(A) Before the Deposition. Unless the parties
stipulate otherwise, a deposition must be conducted
before an officer appointed or designated under Rule 28.
The officer must begin the deposition with an on-the-
record statement that includes:
(i) the officer's name and business address;
(ii) the date, time, and place of the
deposition;
(iii) the deponent's name;
(iv) the officer's administration of the
oath or affirmation to the deponent; and
(v) the identity of all persons present.
(B) Conducting the Deposition; Avoiding Distortion.
If the deposition is recorded nonstenographically, the
officer must repeat the items in Rule 30(b)(5)(A)(i)-
(iii) at the beginning of each unit of the recording
medium. The deponent's and attorneys' appearance or
demeanor must not be distorted through recording
techniques.
(C) After the Deposition. At the end of a
deposition, the officer must state on the record that
the deposition is complete and must set out any
stipulations made by the attorneys about custody of the
transcript or recording and of the exhibits, or about
any other pertinent matters.
(6) Notice or Subpoena Directed to an Organization. In its
notice or subpoena, a party may name as the deponent a public or
private corporation, a partnership, an association, a
governmental agency, or other entity and must describe with
reasonable particularity the matters for examination. The named
organization must then designate one or more officers,
directors, or managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the matters
on which each person designated will testify. A subpoena must
advise a nonparty organization of its duty to make this
designation. The persons designated must testify about
information known or reasonably available to the organization.
This paragraph (6) does not preclude a deposition by any other
procedure allowed by these rules.
(c) Examination and Cross-Examination; Record of the Examination;
Objections; Written Questions.
(1) Examination and Cross-Examination. The examination and
cross-examination of a deponent proceed as they would at trial
under the Federal Rules of Evidence, except Rules 103 and 615.
After putting the deponent under oath or affirmation, the
officer must record the testimony by the method designated under
Rule 30(b)(3)(A). The testimony must be recorded by the officer
personally or by a person acting in the presence and under the
direction of the officer.
(2) Objections. An objection at the time of the examination
-- whether to evidence, to a party's conduct, to the officer's
qualifications, to the manner of taking the deposition, or to
any other aspect of the deposition -- must be noted on the
record, but the examination still proceeds; the testimony is
taken subject to any objection. An objection must be stated
concisely in a nonargumentative and nonsuggestive manner. A
person may instruct a deponent not to answer only when necessary
to preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions. Instead of
participating in the oral examination, a party may serve written
questions in a sealed envelope on the party noticing the
deposition, who must deliver them to the officer. The officer
must ask the deponent those questions and record the answers
verbatim.
(d) Duration; Sanction; Motion to Terminate or Limit.
(1) Duration. Unless otherwise stipulated or ordered by the
court, a deposition is limited to 1 day of 7 hours. The court
must allow additional time consistent with Rule 26(b)(2) if
needed to fairly examine the deponent or if the deponent,
another person, or any other circumstance impedes or delays the
examination.
(2) Sanction. The court may impose an appropriate sanction
-- including the reasonable expenses and attorney's fees
incurred by any party -- on a person who impedes, delays, or
frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the
deponent or a party may move to terminate or limit it on
the ground that it is being conducted in bad faith or in
a manner that unreasonably annoys, embarrasses, or
oppresses the deponent or party. The motion may be filed
in the court where the action is pending or the
deposition is being taken. If the objecting deponent or
party so demands, the deposition must be suspended for
the time necessary to obtain an order.
(B) Order. The court may order that the deposition
be terminated or may limit its scope and manner as
provided in Rule 26(c). If terminated, the deposition
may be resumed only by order of the court where the
action is pending.
(C) Award of Expenses. Rule 37(a)(5) applies to the
award of expenses.
(e) Review by the Witness; Changes.
(1) Review; Statement of Changes. On request by the deponent
or a party before the deposition is completed, the deponent must
be allowed 30 days after being notified by the officer that the
transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to
sign a statement listing the changes and the reasons for
making them.
(2) Changes Indicated in the Officer's Certificate. The
officer must note in the certificate prescribed by Rule 30(f)(1)
whether a review was requested and, if so, must attach any
changes the deponent makes during the 30-day period.
(f) Certification and Delivery; Exhibits; Copies of the Transcript
or Recording; Filing.
(1) Certification and Delivery. The officer must certify in
writing that the witness was duly sworn and that the deposition
accurately records the witness's testimony. The certificate must
accompany the record of the deposition. Unless the court orders
otherwise, the officer must seal the deposition in an envelope
or package bearing the title of the action and marked
``Deposition of [witness's name]'' and must promptly send it to
the attorney who arranged for the transcript or recording. The
attorney must store it under conditions that will protect it
against loss, destruction, tampering, or deterioration.
(2) Documents and Tangible Things.
(A) Originals and Copies. Documents and tangible
things produced for inspection during a deposition must,
on a party's request, be marked for identification and
attached to the deposition. Any party may inspect and
copy them. But if the person who produced them wants to
keep the originals, the person may:
(i) offer copies to be marked, attached to
the deposition, and then used as originals --
after giving all parties a fair opportunity to
verify the copies by comparing them with the
originals; or
(ii) give all parties a fair opportunity to
inspect and copy the originals after they are
marked -- in which event the originals may be
used as if attached to the deposition.
(B) Order Regarding the Originals. Any party may
move for an order that the originals be attached to the
deposition pending final disposition of the case.
(3) Copies of the Transcript or Recording. Unless otherwise
stipulated or ordered by the court, the officer must retain the
stenographic notes of a deposition taken stenographically or a
copy of the recording of a deposition taken by another method.
When paid reasonable charges, the officer must furnish a copy of
the transcript or recording to any party or the deponent.
(4) Notice of Filing. A party who files the deposition must
promptly notify all other parties of the filing.
(g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A
party who, expecting a deposition to be taken, attends in person or by
an attorney may recover reasonable expenses for attending, including
attorney's fees, if the noticing party failed to:
(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who
consequently did not attend.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff. July
1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff. July 1,
1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr.
30, 2007, eff. Dec. 1, 2007.)
Rule 31
. Depositions by Written Questions________________________________
(a) When a Deposition May Be Taken.
(1) Without Leave. A party may, by written questions, depose
any person, including a party, without leave of court except as
provided in Rule 31(a)(2). The deponent's attendance may be
compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the
court must grant leave to the extent consistent with Rule
26(b)(2):
(A) if the parties have not stipulated to the
deposition and:
(i) the deposition would result in more than
10 depositions being taken under this rule or
Rule 30 by the plaintiffs, or by the defendants,
or by the third-party defendants;
(ii) the deponent has already been deposed
in the case; or
(iii) the party seeks to take a deposition
before the time specified in Rule 26(d); or
(B) if the deponent is confined in prison.
(3) Service; Required Notice. A party who wants to depose a
person by written questions must serve them on every other
party, with a notice stating, if known, the deponent's name and
address. If the name is unknown, the notice must provide a
general description sufficient to identify the person or the
particular class or group to which the person belongs. The
notice must also state the name or descriptive title and the
address of the officer before whom the deposition will be taken.
(4) Questions Directed to an Organization. A public or
private corporation, a partnership, an association, or a
governmental agency may be deposed by written questions in
accordance with Rule 30(b)(6).
(5) Questions from Other Parties. Any questions to the
deponent from other parties must be served on all parties as
follows: cross-questions, within 14 days after being served with
the notice and direct questions; redirect questions, within 7
days after being served with cross-questions; and recross-
questions, within 7 days after being served with redirect
questions. The court may, for good cause, extend or shorten
these times.
(b) Delivery to the Officer; Officer's Duties. The party who noticed
the deposition must deliver to the officer a copy of all the questions
served and of the notice. The officer must promptly proceed in the
manner provided in Rule 30(c), (e), and (f) to:
(1) take the deponent's testimony in response to the
questions;
(2) prepare and certify the deposition; and
(3) send it to the party, attaching a copy of the questions
and of the notice.
(c) Notice of Completion or Filing.
(1) Completion. The party who noticed the deposition must
notify all other parties when it is completed.
(2) Filing. A party who files the deposition must promptly
notify all other parties of the filing.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 32
. Using Depositions in Court Proceedings__________________________
(a) Using Depositions.
(1) In General. At a hearing or trial, all or part of a
deposition may be used against a party on these conditions:
(A) the party was present or represented at the
taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible
under the Federal Rules of Evidence if the deponent were
present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
(2) Impeachment and Other Uses. Any party may use a
deposition to contradict or impeach the testimony given by the
deponent as a witness, or for any other purpose allowed by the
Federal Rules of Evidence.
(3) Deposition of Party, Agent, or Designee. An adverse
party may use for any purpose the deposition of a party or
anyone who, when deposed, was the party's officer, director,
managing agent, or designee under Rule 30(b)(6) or 31(a)(4).
(4) Unavailable Witness. A party may use for any purpose the
deposition of a witness, whether or not a party, if the court
finds:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the
place of hearing or trial or is outside the United
States, unless it appears that the witness's absence was
procured by the party offering the deposition;
(C) that the witness cannot attend or testify
because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not
procure the witness's attendance by subpoena; or
(E) on motion and notice, that exceptional
circumstances make it desirable -- in the interest of
justice and with due regard to the importance of live
testimony in open court -- to permit the deposition to
be used.
(5) Limitations on Use.
(A) Deposition Taken on Short Notice. A deposition
must not be used against a party who, having received
less than 11 days' notice of the deposition, promptly
moved for a protective order under Rule 26(c)(1)(B)
requesting that it not be taken or be taken at a
different time or place -- and this motion was still
pending when the deposition was taken.
(B) Unavailable Deponent; Party Could Not Obtain an
Attorney. A deposition taken without leave of court
under the unavailability provision of Rule
30(a)(2)(A)(iii) must not be used against a party who
shows that, when served with the notice, it could not,
despite diligent efforts, obtain an attorney to
represent it at the deposition.
(6) Using Part of a Deposition. If a party offers in
evidence only part of a deposition, an adverse party may require
the offeror to introduce other parts that in fairness should be
considered with the part introduced, and any party may itself
introduce any other parts.
(7) Substituting a Party. Substituting a party under Rule 25
does not affect the right to use a deposition previously taken.
(8) Deposition Taken in an Earlier Action. A deposition
lawfully taken and, if required, filed in any federal- or state-
court action may be used in a later action involving the same
subject matter between the same parties, or their
representatives or successors in interest, to the same extent as
if taken in the later action. A deposition previously taken may
also be used as allowed by the Federal Rules of Evidence.
(b) Objections to Admissibility. Subject to Rules 28(b) and
32(d)(3), an objection may be made at a hearing or trial to the
admission of any deposition testimony that would be inadmissible if the
witness were present and testifying.
(c) Form of Presentation. Unless the court orders otherwise, a party
must provide a transcript of any deposition testimony the party offers,
but may provide the court with the testimony in nontranscript form as
well. On any party's request, deposition testimony offered in a jury
trial for any purpose other than impeachment must be presented in
nontranscript form, if available, unless the court for good cause orders
otherwise.
(d) Waiver of Objections.
(1) To the Notice. An objection to an error or irregularity
in a deposition notice is waived unless promptly served in
writing on the party giving the notice.
(2) To the Officer's Qualification. An objection based on
disqualification of the officer before whom a deposition is to
be taken is waived if not made:
(A) before the deposition begins; or
(B) promptly after the basis for disqualification
becomes known or, with reasonable diligence, could have
been known.
(3) To the Taking of the Deposition.
(A) Objection to Competence, Relevance, or
Materiality. An objection to a deponent's competence --
or to the competence, relevance, or materiality of
testimony -- is not waived by a failure to make the
objection before or during the deposition, unless the
ground for it might have been corrected at that time.
(B) Objection to an Error or Irregularity. An
objection to an error or irregularity at an oral
examination is waived if:
(i) it relates to the manner of taking the
deposition, the form of a question or answer,
the oath or affirmation, a party's conduct, or
other matters that might have been corrected at
that time; and
(ii) it is not timely made during the
deposition.
(C) Objection to a Written Question. An objection to
the form of a written question under Rule 31 is waived
if not served in writing on the party submitting the
question within the time for serving responsive
questions or, if the question is a recross-question,
within 5 days after being served with it.
(4) To Completing and Returning the Deposition. An objection
to how the officer transcribed the testimony -- or prepared,
signed, certified, sealed, endorsed, sent, or otherwise dealt
with the deposition -- is waived unless a motion to suppress is
made promptly after the error or irregularity becomes known or,
with reasonable diligence, could have been known.
(As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff. July
1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 33
. Interrogatories to Parties______________________________________
(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave
to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(2).
(2) Scope. An interrogatory may relate to any matter that
may be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to
fact, but the court may order that the interrogatory need not be
answered until designated discovery is complete, or until a
pretrial conference or some other time.
(b) Answers and Objections.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private
corporation, a partnership, an association, or a
governmental agency, by any officer or agent, who must
furnish the information available to the party.
(2) Time to Respond. The responding party must serve its
answers and any objections within 30 days after being served
with the interrogatories. A shorter or longer time may be
stipulated to under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each interrogatory must,
to the extent it is not objected to, be answered separately and
fully in writing under oath.
(4) Objections. The grounds for objecting to an
interrogatory must be stated with specificity. Any ground not
stated in a timely objection is waived unless the court, for
good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign
them, and the attorney who objects must sign any objections.
(c) Use. An answer to an interrogatory may be used to the extent
allowed by the Federal Rules of Evidence.
(d) Option to Produce Business Records. If the answer to an
interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving or
ascertaining the answer will be substantially the same for either party,
the responding party may answer by:
(1) specifying the records that must be reviewed, in
sufficient detail to enable the interrogating party to locate
and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity
to examine and audit the records and to make copies,
compilations, abstracts, or summaries.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 34
. Producing Documents, Electronically Stored Information, and
Tangible Things, or Entering onto Land, for Inspection and Other
Purposes________________________________________________________________
(a) In General. A party may serve on any other party a request
within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its
representative to inspect, copy, test, or sample the following
items in the responding party's possession, custody, or control:
(A) any designated documents or electronically
stored information -- including writings, drawings,
graphs, charts, photographs, sound recordings, images,
and other data or data compilations -- stored in any
medium from which information can be obtained either
directly or, if necessary, after translation by the
responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property
possessed or controlled by the responding party, so that the
requesting party may inspect, measure, survey, photograph, test,
or sample the property or any designated object or operation on
it.
(b) Procedure.
(1) Contents of the Request. The request:
(A) must describe with reasonable particularity each
item or category of items to be inspected;
(B) must specify a reasonable time, place, and
manner for the inspection and for performing the related
acts; and
(C) may specify the form or forms in which
electronically stored information is to be produced.
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request
is directed must respond in writing within 30 days after
being served. A shorter or longer time may be stipulated
to under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or
category, the response must either state that inspection
and related activities will be permitted as requested or
state an objection to the request, including the
reasons.
(C) Objections. An objection to part of a request
must specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of
Electronically Stored Information. The response may
state an objection to a requested form for producing
electronically stored information. If the responding
party objects to a requested form -- or if no form was
specified in the request -- the party must state the
form or forms it intends to use.
(E) Producing the Documents or Electronically Stored
Information. Unless otherwise stipulated or ordered by
the court, these procedures apply to producing documents
or electronically stored information:
(i) A party must produce documents as they
are kept in the usual course of business or must
organize and label them to correspond to the
categories in the request;
(ii) If a request does not specify a form
for producing electronically stored information,
a party must produce it in a form or forms in
which it is ordinarily maintained or in a
reasonably usable form or forms; and
(iii) A party need not produce the same
electronically stored information in more than
one form.
(c) Nonparties. As provided in Rule 45, a nonparty may be compelled
to produce documents and tangible things or to permit an inspection.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 35
. Physical and Mental Examinations________________________________
(a) Order for an Examination.
(1) In General. The court where the action is pending may
order a party whose mental or physical condition -- including
blood group -- is in controversy to submit to a physical or
mental examination by a suitably licensed or certified examiner.
The court has the same authority to order a party to produce for
examination a person who is in its custody or under its legal
control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on
notice to all parties and the person to be examined; and
(B) must specify the time, place, manner,
conditions, and scope of the examination, as well as the
person or persons who will perform it.
(b) Examiner's Report.
(1) Request by the Party or Person Examined. The party who
moved for the examination must, on request, deliver to the
requester a copy of the examiner's report, together with like
reports of all earlier examinations of the same condition. The
request may be made by the party against whom the examination
order was issued or by the person examined.
(2) Contents. The examiner's report must be in writing and
must set out in detail the examiner's findings, including
diagnoses, conclusions, and the results of any tests.
(3) Request by the Moving Party. After delivering the
reports, the party who moved for the examination may request --
and is entitled to receive -- from the party against whom the
examination order was issued like reports of all earlier or
later examinations of the same condition. But those reports need
not be delivered by the party with custody or control of the
person examined if the party shows that it could not obtain
them.
(4) Waiver of Privilege. By requesting and obtaining the
examiner's report, or by deposing the examiner, the party
examined waives any privilege it may have -- in that action or
any other action involving the same controversy -- concerning
testimony about all examinations of the same condition.
(5) Failure to Deliver a Report. The court on motion may
order -- on just terms -- that a party deliver the report of an
examination. If the report is not provided, the court may
exclude the examiner's testimony at trial.
(6) Scope. This subdivision (b) applies also to an
examination made by the parties' agreement, unless the agreement
states otherwise. This subdivision does not preclude obtaining
an examiner's report or deposing an examiner under other rules.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1,
1987; Nov. 18, 1988; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007,
eff. Dec. 1, 2007.)
Rule 36
. Requests for Admission__________________________________________
(a) Scope and Procedure.
(1) Scope. A party may serve on any other party a written
request to admit, for purposes of the pending action only, the
truth of any matters within the scope of Rule 26(b)(1) relating
to:
(A) facts, the application of law to fact, or
opinions about either; and
(B) the genuineness of any described documents.
(2) Form; Copy of a Document. Each matter must be separately
stated. A request to admit the genuineness of a document must be
accompanied by a copy of the document unless it is, or has been,
otherwise furnished or made available for inspection and
copying.
(3) Time to Respond; Effect of Not Responding. A matter is
admitted unless, within 30 days after being served, the party to
whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and signed
by the party or its attorney. A shorter or longer time for
responding may be stipulated to under Rule 29 or be ordered by
the court.
(4) Answer. If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party
cannot truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith requires
that a party qualify an answer or deny only a part of a matter,
the answer must specify the part admitted and qualify or deny
the rest. The answering party may assert lack of knowledge or
information as a reason for failing to admit or deny only if the
party states that it has made reasonable inquiry and that the
information it knows or can readily obtain is insufficient to
enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must
be stated. A party must not object solely on the ground that the
request presents a genuine issue for trial.
(6) Motion Regarding the Sufficiency of an Answer or
Objection. The requesting party may move to determine the
sufficiency of an answer or objection. Unless the court finds an
objection justified, it must order that an answer be served. On
finding that an answer does not comply with this rule, the court
may order either that the matter is admitted or that an amended
answer be served. The court may defer its final decision until a
pretrial conference or a specified time before trial. Rule
37(a)(5) applies to an award of expenses.
(b) Effect of an Admission; Withdrawing or Amending It. A matter
admitted under this rule is conclusively established unless the court,
on motion, permits the admission to be withdrawn or amended. Subject to
Rule 16(e), the court may permit withdrawal or amendment if it would
promote the presentation of the merits of the action and if the court is
not persuaded that it would prejudice the requesting party in
maintaining or defending the action on the merits. An admission under
this rule is not an admission for any other purpose and cannot be used
against the party in any other proceeding.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 37
. Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions_______________________________________________________________
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General. On notice to other parties and all affected
persons, a party may move for an order compelling disclosure or
discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in
an effort to obtain it without court action.
(2) Appropriate Court. A motion for an order to a party must
be made in the court where the action is pending. A motion for
an order to a nonparty must be made in the court where the
discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a
disclosure required by Rule 26(a), any other party may
move to compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking
discovery may move for an order compelling an answer,
designation, production, or inspection. This motion may
be made if:
(i) a deponent fails to answer a question
asked under Rule 30 or 31;
(ii) a corporation or other entity fails to
make a designation under Rule 30(b)(6) or
31(a)(4);
(iii) a party fails to answer an
interrogatory submitted under Rule 33; or
(iv) a party fails to respond that
inspection will be permitted -- or fails to
permit inspection -- as requested under Rule 34.
(C) Related to a Deposition. When taking an oral
deposition, the party asking a question may complete or
adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response.
For purposes of this subdivision (a), an evasive or incomplete
disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or
Discovery Is Provided After Filing). If the motion is
granted -- or if the disclosure or requested discovery
is provided after the motion was filed -- the court
must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the
motion, the party or attorney advising that conduct, or
both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees. But the
court must not order this payment if:
(i) the movant filed the motion before
attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure,
response, or objection was substantially
justified; or
(iii) other circumstances make an award of
expenses unjust.
(B) If the Motion Is Denied. If the motion is
denied, the court may issue any protective order
authorized under Rule 26(c) and must, after giving an
opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party or
deponent who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorney's
fees. But the court must not order this payment if the
motion was substantially justified or other
circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in
Part. If the motion is granted in part and denied in
part, the court may issue any protective order
authorized under Rule 26(c) and may, after giving an
opportunity to be heard, apportion the reasonable
expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions in the District Where the Deposition Is Taken.
If the court where the discovery is taken orders a deponent to
be sworn or to answer a question and the deponent fails to obey,
the failure may be treated as contempt of court.
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or
a party's officer, director, or managing agent -- or a
witness designated under Rule 30(b)(6) or 31(a)(4) --
fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the
court where the action is pending may issue further just
orders. They may include the following:
(i) directing that the matters embraced in
the order or other designated facts be taken as
established for purposes of the action, as the
prevailing party claims;
(ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated matters
in evidence;
(iii) striking pleadings in whole or in
part;
(iv) staying further proceedings until the
order is obeyed;
(v) dismissing the action or proceeding in
whole or in part;
(vi) rendering a default judgment against
the disobedient party; or
(vii) treating as contempt of court the
failure to obey any order except an order to
submit to a physical or mental examination.
(B) For Not Producing a Person for Examination. If a
party fails to comply with an order under Rule 35(a)
requiring it to produce another person for examination,
the court may issue any of the orders listed in Rule
37(b)(2)(A)(i)-(vi), unless the disobedient party shows
that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition
to the orders above, the court must order the
disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other
circumstances make an award of expenses unjust.
(c) Failure to Disclose, to Supplement an Earlier Response, or to
Admit.
(1) Failure to Disclose or Supplement. If a party fails to
provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court,
on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses,
including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions,
including any of the orders listed in Rule
37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit what is
requested under Rule 36 and if the requesting party later proves
a document to be genuine or the matter true, the requesting
party may move that the party who failed to admit pay the
reasonable expenses, including attorney's fees, incurred in
making that proof. The court must so order unless:
(A) the request was held objectionable under Rule
36(a);
(B) the admission sought was of no substantial
importance;
(C) the party failing to admit had a reasonable
ground to believe that it might prevail on the matter;
or
(D) there was other good reason for the failure to
admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where
the action is pending may, on motion, order sanctions
if:
(i) a party or a party's officer, director,
or managing agent -- or a person designated
under Rule 30(b)(6) or 31(a)(4) -- fails, after
being served with proper notice, to appear for
that person's deposition; or
(ii) a party, after being properly served
with interrogatories under Rule 33 or a request
for inspection under Rule 34, fails to serve its
answers, objections, or written response.
(B) Certification. A motion for sanctions for
failing to answer or respond must include a
certification that the movant has in good faith
conferred or attempted to confer with the party failing
to act in an effort to obtain the answer or response
without court action.
(2) Unacceptable Excuse for Failing to Act. A failure
described in Rule 37(d)(1)(A) is not excused on the ground that
the discovery sought was objectionable, unless the party failing
to act has a pending motion for a protective order under Rule
26(c).
(3) Types of Sanctions. Sanctions may include any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in
addition to these sanctions, the court must require the party
failing to act, the attorney advising that party, or both to pay
the reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.
(e) Failure to Provide Electronically Stored Information. Absent
exceptional circumstances, a court may not impose sanctions under these
rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an
electronic information system.
(f) Failure to Participate in Framing a Discovery Plan. If a party
or its attorney fails to participate in good faith in developing and
submitting a proposed discovery plan as required by Rule 26(f), the
court may, after giving an opportunity to be heard, require that party
or attorney to pay to any other party the reasonable expenses, including
attorney's fees, caused by the failure.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Oct. 21, 1980, eff. Oct. 1,
1981; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993;
Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.
30, 2007, eff. Dec. 1, 2007.)
TITLE VI. TRIALS
Rule 38
. Right to a Jury Trial; Demand___________________________________
(a) Right Preserved. The right of trial by jury as declared by the
Seventh Amendment to the Constitution -- or as provided by a federal
statute -- is preserved to the parties inviolate.
(b) Demand. On any issue triable of right by a jury, a party may
demand a jury trial by:
(1) serving the other parties with a written demand -- which
may be included in a pleading -- no later than 10 days after the
last pleading directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d).
(c) Specifying Issues. In its demand, a party may specify the issues
that it wishes to have tried by a jury; otherwise, it is considered to
have demanded a jury trial on all the issues so triable. If the party
has demanded a jury trial on only some issues, any other party may --
within 10 days after being served with the demand or within a shorter
time ordered by the court -- serve a demand for a jury trial on any
other or all factual issues triable by jury.
(d) Waiver; Withdrawal. A party waives a jury trial unless its
demand is properly served and filed. A proper demand may be withdrawn
only if the parties consent.
(e) Admiralty and Maritime Claims. These rules do not create a right
to a jury trial on issues in a claim that is an admiralty or maritime
claim under Rule 9(h).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 39
. Trial by Jury or by the Court___________________________________
(a) When a Demand Is Made. When a jury trial has been demanded under
Rule 38, the action must be designated on the docket as a jury action.
The trial on all issues so demanded must be by jury unless:
(1) the parties or their attorneys file a stipulation to a
nonjury trial or so stipulate on the record; or
(2) the court, on motion or on its own, finds that on some
or all of those issues there is no federal right to a jury
trial.
(b) When No Demand Is Made. Issues on which a jury trial is not
properly demanded are to be tried by the court. But the court may, on
motion, order a jury trial on any issue for which a jury might have been
demanded.
(c) Advisory Jury; Jury Trial by Consent. In an action not triable
of right by a jury, the court, on motion or on its own:
(1) may try any issue with an advisory jury; or
(2) may, with the parties' consent, try any issue by a jury
whose verdict has the same effect as if a jury trial had been a
matter of right, unless the action is against the United States
and a federal statute provides for a nonjury trial.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 40
. Scheduling Cases for Trial______________________________________
Each court must provide by rule for scheduling trials. The court
must give priority to actions entitled to priority by a federal statute.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 41
. Dismissal of Actions____________________________________________
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal
statute, the plaintiff may dismiss an action without a
court order by filing:
(i) a notice of dismissal before the
opposing party serves either an answer or a
motion for summary judgment; or
(ii) a stipulation of dismissal signed by
all parties who have appeared.
(B) Effect. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice. But if
the plaintiff previously dismissed any federal- or
state-court action based on or including the same claim,
a notice of dismissal operates as an adjudication on the
merits.
(2) By Court Order; Effect. Except as provided in Rule
41(a)(1), an action may be dismissed at the plaintiff's request
only by court order, on terms that the court considers proper.
If a defendant has pleaded a counterclaim before being served
with the plaintiff's motion to dismiss, the action may be
dismissed over the defendant's objection only if the
counterclaim can remain pending for independent adjudication.
Unless the order states otherwise, a dismissal under this
paragraph (2) is without prejudice.
(b) Involuntary Dismissal; Effect. If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b)
and any dismissal not under this rule -- except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19
-- operates as an adjudication on the merits.
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim.
This rule applies to a dismissal of any counterclaim, crossclaim, or
third-party claim. A claimant's voluntary dismissal under Rule
41(a)(1)(A)(i) must be made:
(1) before a responsive pleading is served; or
(2) if there is no responsive pleading, before evidence is
introduced at a hearing or trial.
(d) Costs of a Previously Dismissed Action. If a plaintiff who
previously dismissed an action in any court files an action based on or
including the same claim against the same defendant, the court:
(1) may order the plaintiff to pay all or part of the costs
of that previous action; and
(2) may stay the proceedings until the plaintiff has
complied.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1,
1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 42
. Consolidation; Separate Trials__________________________________
(a) Consolidation. If actions before the court involve a common
question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in
the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or
delay.
(b) Separate Trials. For convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of one or
more separate issues, claims, crossclaims, counterclaims, or third-party
claims. When ordering a separate trial, the court must preserve any
federal right to a jury trial.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 43
. Taking Testimony________________________________________________
(a) In Open Court. At trial, the witnesses' testimony must be taken
in open court unless a federal statute, the Federal Rules of Evidence,
these rules, or other rules adopted by the Supreme Court provide
otherwise. For good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.
(b) Affirmation Instead of an Oath. When these rules require an
oath, a solemn affirmation suffices.
(c) Evidence on a Motion. When a motion relies on facts outside the
record, the court may hear the matter on affidavits or may hear it
wholly or partly on oral testimony or on depositions.
(d) Interpreter. The court may appoint an interpreter of its
choosing; fix reasonable compensation to be paid from funds provided by
law or by one or more parties; and tax the compensation as costs.
(As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and Dec.
18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23,
1996, eff. Dec. 1, 1996; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 44
. Proving an Official Record______________________________________
(a) Means of Proving.
(1) Domestic Record. Each of the following evidences an
official record -- or an entry in it -- that is otherwise
admissible and is kept within the United States, any state,
district, or commonwealth, or any territory subject to the
administrative or judicial jurisdiction of the United States:
(A) an official publication of the record; or
(B) a copy attested by the officer with legal
custody of the record -- or by the officer's deputy --
and accompanied by a certificate that the officer has
custody. The certificate must be made under seal:
(i) by a judge of a court of record in the
district or political subdivision where the
record is kept; or
(ii) by any public officer with a seal of
office and with official duties in the district
or political subdivision where the record is
kept.
(2) Foreign Record.
(A) In General. Each of the following evidences a
foreign official record -- or an entry in it -- that is
otherwise admissible:
(i) an official publication of the record;
or
(ii) the record -- or a copy -- that is
attested by an authorized person and is
accompanied either by a final certification of
genuineness or by a certification under a treaty
or convention to which the United States and the
country where the record is located are parties.
(B) Final Certification of Genuineness. A final
certification must certify the genuineness of the
signature and official position of the attester or of
any foreign official whose certificate of genuineness
relates to the attestation or is in a chain of
certificates of genuineness relating to the attestation.
A final certification may be made by a secretary of a
United States embassy or legation; by a consul general,
vice consul, or consular agent of the United States; or
by a diplomatic or consular official of the foreign
country assigned or accredited to the United States.
(C) Other Means of Proof. If all parties have had a
reasonable opportunity to investigate a foreign record's
authenticity and accuracy, the court may, for good
cause, either:
(i) admit an attested copy without final
certification; or
(ii) permit the record to be evidenced by an
attested summary with or without a final
certification.
(b) Lack of a Record. A written statement that a diligent search of
designated records revealed no record or entry of a specified tenor is
admissible as evidence that the records contain no such record or entry.
For domestic records, the statement must be authenticated under Rule
44(a)(1). For foreign records, the statement must comply with
(a)(2)(C)(ii).
(c) Other Proof. A party may prove an official record -- or an entry
or lack of an entry in it -- by any other method authorized by law.
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 44.1
. Determining Foreign Law_________________________________________
A party who intends to raise an issue about a foreign country's law
must give notice by a pleading or other writing. In determining foreign
law, the court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the
Federal Rules of Evidence. The court's determination must be treated as
a ruling on a question of law.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972, eff.
July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 45
. Subpoena________________________________________________________
(a) In General.
(1) Form and Contents.
(A) Requirements -- In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action, the
court in which it is pending, and its civil-
action number;
(iii) command each person to whom it is
directed to do the following at a specified time
and place: attend and testify; produce
designated documents, electronically stored
information, or tangible things in that person's
possession, custody, or control; or permit the
inspection of premises; and
(iv) set out the text of Rule 45(c) and (d).
(B) Command to Attend a Deposition -- Notice of the
Recording Method. A subpoena commanding attendance at a
deposition must state the method for recording the
testimony.
(C) Combining or Separating a Command to Produce or
to Permit Inspection; Specifying the Form for
Electronically Stored Information. A command to produce
documents, electronically stored information, or
tangible things or to permit the inspection of premises
may be included in a subpoena commanding attendance at a
deposition, hearing, or trial, or may be set out in a
separate subpoena. A subpoena may specify the form or
forms in which electronically stored information is to
be produced.
(D) Command to Produce; Included Obligations. A
command in a subpoena to produce documents,
electronically stored information, or tangible things
requires the responding party to permit inspection,
copying, testing, or sampling of the materials.
(2) Issued from Which Court. A subpoena must issue as
follows:
(A) for attendance at a hearing or trial, from the
court for the district where the hearing or trial is to
be held;
(B) for attendance at a deposition, from the court
for the district where the deposition is to be taken;
and
(C) for production or inspection, if separate from a
subpoena commanding a person's attendance, from the
court for the district where the production or
inspection is to be made.
(3) Issued by Whom. The clerk must issue a subpoena, signed
but otherwise in blank, to a party who requests it. That party
must complete it before service. An attorney also may issue and
sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to
practice; or
(B) a court for a district where a deposition is to
be taken or production is to be made, if the attorney is
authorized to practice in the court where the action is
pending.
(b) Service.
(1) By Whom; Tendering Fees; Serving a Copy of Certain
Subpoenas. Any person who is at least 18 years old and not a
party may serve a subpoena. Serving a subpoena requires
delivering a copy to the named person and, if the subpoena
requires that person's attendance, tendering the fees for 1
day's attendance and the mileage allowed by law. Fees and
mileage need not be tendered when the subpoena issues on behalf
of the United States or any of its officers or agencies. If the
subpoena commands the production of documents, electronically
stored information, or tangible things or the inspection of
premises before trial, then before it is served, a notice must
be served on each party.
(2) Service in the United States. Subject to Rule
45(c)(3)(A)(ii), a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of
the place specified for the deposition, hearing, trial,
production, or inspection;
(C) within the state of the issuing court if a state
statute or court rule allows service at that place of a
subpoena issued by a state court of general jurisdiction
sitting in the place specified for the deposition,
hearing, trial, production, or inspection; or
(D) that the court authorizes on motion and for good
cause, if a federal statute so provides.
(3) Service in a Foreign Country. 28 U.S.C. Sec. 1783
governs issuing and serving a subpoena directed to a United
States national or resident who is in a foreign country.
(4) Proof of Service. Proving service, when necessary,
requires filing with the issuing court a statement showing the
date and manner of service and the names of the persons served.
The statement must be certified by the server.
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must
take reasonable steps to avoid imposing undue burden or expense
on a person subject to the subpoena. The issuing court must
enforce this duty and impose an appropriate sanction -- which
may include lost earnings and reasonable attorney's fees -- on a
party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to
produce documents, electronically stored information, or
tangible things, or to permit the inspection of
premises, need not appear in person at the place of
production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce
documents or tangible things or to permit inspection may
serve on the party or attorney designated in the
subpoena a written objection to inspecting, copying,
testing or sampling any or all of the materials or to
inspecting the premises -- or to producing
electronically stored information in the form or forms
requested. The objection must be served before the
earlier of the time specified for compliance or 14 days
after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded
person, the serving party may move the issuing
court for an order compelling production or
inspection.
(ii) These acts may be required only as
directed in the order, and the order must
protect a person who is neither a party nor a
party's officer from significant expense
resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing
court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to
comply;
(ii) requires a person who is neither a
party nor a party's officer to travel more than
100 miles from where that person resides, is
employed, or regularly transacts business in
person -- except that, subject to Rule
45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place
within the state where the trial is held;
(iii) requires disclosure of privileged or
other protected matter, if no exception or
waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to
or affected by a subpoena, the issuing court may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other
confidential research, development, or
commercial information;
(ii) disclosing an unretained expert's
opinion or information that does not describe
specific occurrences in dispute and results from
the expert's study that was not requested by a
party; or
(iii) a person who is neither a party nor a
party's officer to incur substantial expense to
travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the
circumstances described in Rule 45(c)(3)(B), the court
may, instead of quashing or modifying a subpoena, order
appearance or production under specified conditions if
the serving party:
(i) shows a substantial need for the
testimony or material that cannot be otherwise
met without undue hardship; and
(ii) ensures that the subpoenaed person will
be reasonably compensated.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored
Information. These procedures apply to producing documents or
electronically stored information:
(A) Documents. A person responding to a subpoena to
produce documents must produce them as they are kept in
the ordinary course of business or must organize and
label them to correspond to the categories in the
demand.
(B) Form for Producing Electronically Stored
Information Not Specified. If a subpoena does not
specify a form for producing electronically stored
information, the person responding must produce it in a
form or forms in which it is ordinarily maintained or in
a reasonably usable form or forms.
(C) Electronically Stored Information Produced in
Only One Form. The person responding need not produce
the same electronically stored information in more than
one form.
(D) Inaccessible Electronically Stored Information.
The person responding need not provide discovery of
electronically stored information from sources that the
person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery
or for a protective order, the person responding must
show that the information is not reasonably accessible
because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from
such sources if the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding
subpoenaed information under a claim that it is
privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld
documents, communications, or tangible things in
a manner that, without revealing information
itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in
response to a subpoena is subject to a claim of
privilege or of protection as trial-preparation
material, the person making the claim may notify any
party that received the information of the claim and the
basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified
information and any copies it has; must not use or
disclose the information until the claim is resolved;
must take reasonable steps to retrieve the information
if the party disclosed it before being notified; and may
promptly present the information to the court under seal
for a determination of the claim. The person who
produced the information must preserve the information
until the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person who,
having been served, fails without adequate excuse to obey the subpoena.
A nonparty's failure to obey must be excused if the subpoena purports to
require the nonparty to attend or produce at a place outside the limits
of Rule 45(c)(3)(A)(ii).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff. Aug. 1,
1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987;
Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 25, 2005, eff. Dec. 1, 2005; Apr.
12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 46
. Objecting to a Ruling or Order__________________________________
A formal exception to a ruling or order is unnecessary. When the
ruling or order is requested or made, a party need only state the action
that it wants the court to take or objects to, along with the grounds
for the request or objection. Failing to object does not prejudice a
party who had no opportunity to do so when the ruling or order was made.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 47
. Selecting Jurors________________________________________________
(a) Examining Jurors. The court may permit the parties or their
attorneys to examine prospective jurors or may itself do so. If the
court examines the jurors, it must permit the parties or their attorneys
to make any further inquiry it considers proper, or must itself ask any
of their additional questions it considers proper.
(b) Peremptory Challenges. The court must allow the number of
peremptory challenges provided by 28 U.S.C. Sec. 1870.
(c) Excusing a Juror. During trial or deliberation, the court may
excuse a juror for good cause.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 48
. Number of Jurors; Verdict_______________________________________
A jury must initially have at least 6 and no more than 12 members,
and each juror must participate in the verdict unless excused under Rule
47(c). Unless the parties stipulate otherwise, the verdict must be
unanimous and be returned by a jury of at least 6 members.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 49
. Special Verdict; General Verdict and Questions__________________
(a) Special Verdict.
(1) In General. The court may require a jury to return only
a special verdict in the form of a special written finding on
each issue of fact. The court may do so by:
(A) submitting written questions susceptible of a
categorical or other brief answer;
(B) submitting written forms of the special findings
that might properly be made under the pleadings and
evidence; or
(C) using any other method that the court considers
appropriate.
(2) Instructions. The court must give the instructions and
explanations necessary to enable the jury to make its findings
on each submitted issue.
(3) Issues Not Submitted. A party waives the right to a jury
trial on any issue of fact raised by the pleadings or evidence
but not submitted to the jury unless, before the jury retires,
the party demands its submission to the jury. If the party does
not demand submission, the court may make a finding on the
issue. If the court makes no finding, it is considered to have
made a finding consistent with its judgment on the special
verdict.
(b) General Verdict with Answers to Written Questions.
(1) In General. The court may submit to the jury forms for a
general verdict, together with written questions on one or more
issues of fact that the jury must decide. The court must give
the instructions and explanations necessary to enable the jury
to render a general verdict and answer the questions in writing,
and must direct the jury to do both.
(2) Verdict and Answers Consistent. When the general verdict
and the answers are consistent, the court must approve, for
entry under Rule 58, an appropriate judgment on the verdict and
answers.
(3) Answers Inconsistent with the Verdict. When the answers
are consistent with each other but one or more is inconsistent
with the general verdict, the court may:
(A) approve, for entry under Rule 58, an appropriate
judgment according to the answers, notwithstanding the
general verdict;
(B) direct the jury to further consider its answers
and verdict; or
(C) order a new trial.
(4) Answers Inconsistent with Each Other and the Verdict.
When the answers are inconsistent with each other and one or
more is also inconsistent with the general verdict, judgment
must not be entered; instead, the court must direct the jury to
further consider its answers and verdict, or must order a new
trial.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 50
. Judgment as a Matter of Law in a Jury Trial; Related Motion for
a New Trial; Conditional Ruling_________________________________________
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with
a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be
made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial. If the court does not grant a motion for judgment as a matter of
law made under Rule 50(a), the court is considered to have submitted the
action to the jury subject to the court's later deciding the legal
questions raised by the motion. No later than 10 days after the entry of
judgment -- or if the motion addresses a jury issue not decided by a
verdict, no later than 10 days after the jury was discharged -- the
movant may file a renewed motion for judgment as a matter of law and may
include an alternative or joint request for a new trial under Rule 59.
In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a
verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for
a New Trial.
(1) In General. If the court grants a renewed motion for
judgment as a matter of law, it must also conditionally rule on
any motion for a new trial by determining whether a new trial
should be granted if the judgment is later vacated or reversed.
The court must state the grounds for conditionally granting or
denying the motion for a new trial.
(2) Effect of a Conditional Ruling. Conditionally granting
the motion for a new trial does not affect the judgment's
finality; if the judgment is reversed, the new trial must
proceed unless the appellate court orders otherwise. If the
motion for a new trial is conditionally denied, the appellee may
assert error in that denial; if the judgment is reversed, the
case must proceed as the appellate court orders.
(d) Time for a Losing Party's New-Trial Motion. Any motion for a new
trial under Rule 59 by a party against whom judgment as a matter of law
is rendered must be filed no later than 10 days after the entry of the
judgment.
(e) Denying the Motion for Judgment as a Matter of Law; Reversal on
Appeal. If the court denies the motion for judgment as a matter of law,
the prevailing party may, as appellee, assert grounds entitling it to a
new trial should the appellate court conclude that the trial court erred
in denying the motion. If the appellate court reverses the judgment, it
may order a new trial, direct the trial court to determine whether a new
trial should be granted, or direct the entry of judgment.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 12, 2006, eff. Dec. 1,
2006; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 51
. Instructions to the Jury; Objections; Preserving a Claim of
Error___________________________________________________________________
(a) Requests.
(1) Before or at the Close of the Evidence. At the close of
the evidence or at any earlier reasonable time that the court
orders, a party may file and furnish to every other party
written requests for the jury instructions it wants the court to
give.
(2) After the Close of the Evidence. After the close of the
evidence, a party may:
(A) file requests for instructions on issues that
could not reasonably have been anticipated by an earlier
time that the court set for requests; and
(B) with the court's permission, file untimely
requests for instructions on any issue.
(b) Instructions. The court:
(1) must inform the parties of its proposed instructions and
proposed action on the requests before instructing the jury and
before final jury arguments;
(2) must give the parties an opportunity to object on the
record and out of the jury's hearing before the instructions and
arguments are delivered; and
(3) may instruct the jury at any time before the jury is
discharged.
(c) Objections.
(1) How to Make. A party who objects to an instruction or
the failure to give an instruction must do so on the record,
stating distinctly the matter objected to and the grounds for
the objection.
(2) When to Make. An objection is timely if:
(A) a party objects at the opportunity provided
under Rule 51(b)(2); or
(B) a party was not informed of an instruction or
action on a request before that opportunity to object,
and the party objects promptly after learning that the
instruction or request will be, or has been, given or
refused.
(d) Assigning Error; Plain Error.
(1) Assigning Error. A party may assign as error:
(A) an error in an instruction actually given, if
that party properly objected; or
(B) a failure to give an instruction, if that party
properly requested it and -- unless the court rejected
the request in a definitive ruling on the record -- also
properly objected.
(2) Plain Error. A court may consider a plain error in the
instructions that has not been preserved as required by Rule
51(d)(1) if the error affects substantial rights.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Mar. 27, 2003, eff. Dec. 1,
2003; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 52
. Findings and Conclusions by the Court; Judgment on Partial
Findings________________________________________________________________
(a) Findings and Conclusions.
(1) In General. In an action tried on the facts without a
jury or with an advisory jury, the court must find the facts
specially and state its conclusions of law separately. The
findings and conclusions may be stated on the record after the
close of the evidence or may appear in an opinion or a
memorandum of decision filed by the court. Judgment must be
entered under Rule 58.
(2) For an Interlocutory Injunction. In granting or refusing
an interlocutory injunction, the court must similarly state the
findings and conclusions that support its action.
(3) For a Motion. The court is not required to state
findings or conclusions when ruling on a motion under Rule 12 or
56 or, unless these rules provide otherwise, on any other
motion.
(4) Effect of a Master's Findings. A master's findings, to
the extent adopted by the court, must be considered the court's
findings.
(5) Questioning the Evidentiary Support. A party may later
question the sufficiency of the evidence supporting the
findings, whether or not the party requested findings, objected
to them, moved to amend them, or moved for partial findings.
(6) Setting Aside the Findings. Findings of fact, whether
based on oral or other evidence, must not be set aside unless
clearly erroneous, and the reviewing court must give due regard
to the trial court's opportunity to judge the witnesses'
credibility.
(b) Amended or Additional Findings. On a party's motion filed no
later than 10 days after the entry of judgment, the court may amend its
findings -- or make additional findings -- and may amend the judgment
accordingly. The motion may accompany a motion for a new trial under
Rule 59.
(c) Judgment on Partial Findings. If a party has been fully heard on
an issue during a nonjury trial and the court finds against the party on
that issue, the court may enter judgment against the party on a claim or
defense that, under the controlling law, can be maintained or defeated
only with a favorable finding on that issue. The court may, however,
decline to render any judgment until the close of the evidence. A
judgment on partial findings must be supported by findings of fact and
conclusions of law as required by Rule 52(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1,
1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 53
. Masters_________________________________________________________
(a) Appointment.
(1) Scope. Unless a statute provides otherwise, a court may
appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend
findings of fact on issues to be decided without a jury
if appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or
resolve a difficult computation of damages; or
(C) address pretrial and posttrial matters that
cannot be effectively and timely addressed by an
available district judge or magistrate judge of the
district.
(2) Disqualification. A master must not have a relationship
to the parties, attorneys, action, or court that would require
disqualification of a judge under 28 U.S.C. Sec. 455, unless the
parties, with the court's approval, consent to the appointment
after the master discloses any potential grounds for
disqualification.
(3) Possible Expense or Delay. In appointing a master, the
court must consider the fairness of imposing the likely expenses
on the parties and must protect against unreasonable expense or
delay.
(b) Order Appointing a Master.
(1) Notice. Before appointing a master, the court must give
the parties notice and an opportunity to be heard. Any party may
suggest candidates for appointment.
(2) Contents. The appointing order must direct the master to
proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation
or enforcement duties, and any limits on the master's
authority under Rule 53(c);
(B) the circumstances, if any, in which the master
may communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and
filed as the record of the master's activities;
(D) the time limits, method of filing the record,
other procedures, and standards for reviewing the
master's orders, findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the
master's compensation under Rule 53(g).
(3) Issuing. The court may issue the order only after:
(A) the master files an affidavit disclosing whether
there is any ground for disqualification under 28 U.S.C.
Sec. 455; and
(B) if a ground is disclosed, the parties, with the
court's approval, waive the disqualification.
(4) Amending. The order may be amended at any time after
notice to the parties and an opportunity to be heard.
(c) Master's Authority.
(1) In General. Unless the appointing order directs
otherwise, a master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the
assigned duties fairly and efficiently; and
(C) if conducting an evidentiary hearing, exercise
the appointing court's power to compel, take, and record
evidence.
(2) Sanctions. The master may by order impose on a party any
noncontempt sanction provided by Rule 37 or 45, and may
recommend a contempt sanction against a party and sanctions
against a nonparty.
(d) Master's Orders. A master who issues an order must file it and
promptly serve a copy on each party. The clerk must enter the order on
the docket.
(e) Master's Reports. A master must report to the court as required
by the appointing order. The master must file the report and promptly
serve a copy on each party, unless the court orders otherwise.
(f) Action on the Master's Order, Report, or Recommendations.
(1) Opportunity for a Hearing; Action in General. In acting
on a master's order, report, or recommendations, the court must
give the parties notice and an opportunity to be heard; may
receive evidence; and may adopt or affirm, modify, wholly or
partly reject or reverse, or resubmit to the master with
instructions.
(2) Time to Object or Move to Adopt or Modify. A party may
file objections to -- or a motion to adopt or modify -- the
master's order, report, or recommendations no later than 20 days
after a copy is served, unless the court sets a different time.
(3) Reviewing Factual Findings. The court must decide de
novo all objections to findings of fact made or recommended by a
master, unless the parties, with the court's approval, stipulate
that:
(A) the findings will be reviewed for clear error;
or
(B) the findings of a master appointed under Rule
53(a)(1)(A) or (C) will be final.
(4) Reviewing Legal Conclusions. The court must decide de
novo all objections to conclusions of law made or recommended by
a master.
(5) Reviewing Procedural Matters. Unless the appointing
order establishes a different standard of review, the court may
set aside a master's ruling on a procedural matter only for an
abuse of discretion.
(g) Compensation.
(1) Fixing Compensation. Before or after judgment, the court
must fix the master's compensation on the basis and terms stated
in the appointing order, but the court may set a new basis and
terms after giving notice and an opportunity to be heard.
(2) Payment. The compensation must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action
within the court's control.
(3) Allocating Payment. The court must allocate payment
among the parties after considering the nature and amount of the
controversy, the parties' means, and the extent to which any
party is more responsible than other parties for the reference
to a master. An interim allocation may be amended to reflect a
decision on the merits.
(h) Appointing a Magistrate Judge. A magistrate judge is subject to
this rule only when the order referring a matter to the magistrate judge
states that the reference is made under this rule.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff. Aug.
1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1,
2003; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE VII. JUDGMENT
Rule 54
. Judgment; Costs_________________________________________________
(a) Definition; Form. ``Judgment'' as used in these rules includes a
decree and any order from which an appeal lies. A judgment should not
include recitals of pleadings, a master's report, or a record of prior
proceedings.
(b) Judgment on Multiple Claims or Involving Multiple Parties. When
an action presents more than one claim for relief -- whether as a claim,
counterclaim, crossclaim, or third-party claim -- or when multiple
parties are involved, the court may direct entry of a final judgment as
to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise,
any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and
may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities.
(c) Demand for Judgment; Relief to Be Granted. A default judgment
must not differ in kind from, or exceed in amount, what is demanded in
the pleadings. Every other final judgment should grant the relief to
which each party is entitled, even if the party has not demanded that
relief in its pleadings.
(d) Costs; Attorney's Fees.
(1) Costs Other Than Attorney's Fees. Unless a federal
statute, these rules, or a court order provides otherwise, costs
-- other than attorney's fees -- should be allowed to the
prevailing party. But costs against the United States, its
officers, and its agencies may be imposed only to the extent
allowed by law. The clerk may tax costs on 1 day's notice. On
motion served within the next 5 days, the court may review the
clerk's action.
(2) Attorney's Fees.
(A) Claim to Be by Motion. A claim for attorney's
fees and related nontaxable expenses must be made by
motion unless the substantive law requires those fees to
be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a
statute or a court order provides otherwise, the motion
must:
(i) be filed no later than 14 days after the
entry of judgment;
(ii) specify the judgment and the statute,
rule, or other grounds entitling the movant to
the award;
(iii) state the amount sought or provide a
fair estimate of it; and
(iv) disclose, if the court so orders, the
terms of any agreement about fees for the
services for which the claim is made.
(C) Proceedings. Subject to Rule 23(h), the court
must, on a party's request, give an opportunity for
adversary submissions on the motion in accordance with
Rule 43(c) or 78. The court may decide issues of
liability for fees before receiving submissions on the
value of services. The court must find the facts and
state its conclusions of law as provided in Rule 52(a).
(D) Special Procedures by Local Rule; Reference to a
Master or a Magistrate Judge. By local rule, the court
may establish special procedures to resolve fee-related
issues without extensive evidentiary hearings. Also, the
court may refer issues concerning the value of services
to a special master under Rule 53 without regard to the
limitations of Rule 53(a)(1), and may refer a motion for
attorney's fees to a magistrate judge under Rule 72(b)
as if it were a dispositive pretrial matter.
(E) Exceptions. Subparagraphs (A)-(D) do not apply
to claims for fees and expenses as sanctions for
violating these rules or as sanctions under 28 U.S.C.
Sec. 1927.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July
19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff. Dec. 1,
2003; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 55
. Default; Default Judgment_______________________________________
(a) Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the clerk must
enter the party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum
certain or a sum that can be made certain by computation, the
clerk -- on the plaintiff's request, with an affidavit showing
the amount due -- must enter judgment for that amount and costs
against a defendant who has been defaulted for not appearing and
who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply
to the court for a default judgment. A default judgment may be
entered against a minor or incompetent person only if
represented by a general guardian, conservator, or other like
fiduciary who has appeared. If the party against whom a default
judgment is sought has appeared personally or by a
representative, that party or its representative must be served
with written notice of the application at least 3 days before
the hearing. The court may conduct hearings or make referrals --
preserving any federal statutory right to a jury trial -- when,
to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by
evidence; or
(D) investigate any other matter.
(c) Setting Aside a Default or a Default Judgment. The court may set
aside an entry of default for good cause, and it may set aside a default
judgment under Rule 60(b).
(d) Judgment Against the United States. A default judgment may be
entered against the United States, its officers, or its agencies only if
the claimant establishes a claim or right to relief by evidence that
satisfies the court.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 56
. Summary Judgment________________________________________________
(a) By a Claiming Party. A party claiming relief may move, with or
without supporting affidavits, for summary judgment on all or part of
the claim. The motion may be filed at any time after:
(1) 20 days have passed from commencement of the action; or
(2) the opposing party serves a motion for summary judgment.
(b) By a Defending Party. A party against whom relief is sought may
move at any time, with or without supporting affidavits, for summary
judgment on all or part of the claim.
(c) Serving the Motion; Proceedings. The motion must be served at
least 10 days before the day set for the hearing. An opposing party may
serve opposing affidavits before the hearing day. The judgment sought
should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.
(d) Case Not Fully Adjudicated on the Motion.
(1) Establishing Facts. If summary judgment is not rendered
on the whole action, the court should, to the extent
practicable, determine what material facts are not genuinely at
issue. The court should so determine by examining the pleadings
and evidence before it and by interrogating the attorneys. It
should then issue an order specifying what facts -- including
items of damages or other relief -- are not genuinely at issue.
The facts so specified must be treated as established in the
action.
(2) Establishing Liability. An interlocutory summary
judgment may be rendered on liability alone, even if there is a
genuine issue on the amount of damages.
(e) Affidavits; Further Testimony.
(1) In General. A supporting or opposing affidavit must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent
to testify on the matters stated. If a paper or part of a paper
is referred to in an affidavit, a sworn or certified copy must
be attached to or served with the affidavit. The court may
permit an affidavit to be supplemented or opposed by
depositions, answers to interrogatories, or additional
affidavits.
(2) Opposing Party's Obligation to Respond. When a motion
for summary judgment is properly made and supported, an opposing
party may not rely merely on allegations or denials in its own
pleading; rather, its response must -- by affidavits or as
otherwise provided in this rule -- set out specific facts
showing a genuine issue for trial. If the opposing party does
not so respond, summary judgment should, if appropriate, be
entered against that party.
(f) When Affidavits Are Unavailable. If a party opposing the motion
shows by affidavit that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
(g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit
under this rule is submitted in bad faith or solely for delay, the court
must order the submitting party to pay the other party the reasonable
expenses, including attorney's fees, it incurred as a result. An
offending party or attorney may also be held in contempt.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 57
. Declaratory Judgment____________________________________________
These rules govern the procedure for obtaining a declaratory
judgment under 28 U.S.C. Sec. 2201. Rules 38 and 39 govern a demand for
a jury trial. The existence of another adequate remedy does not preclude
a declaratory judgment that is otherwise appropriate. The court may
order a speedy hearing of a declaratory-judgment action.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 58
. Entering Judgment_______________________________________________
(a) Separate Document. Every judgment and amended judgment must be
set out in a separate document, but a separate document is not required
for an order disposing of a motion:
(1) for judgment under Rule 50(b);
(2) to amend or make additional findings under Rule 52(b);
(3) for attorney's fees under Rule 54;
(4) for a new trial, or to alter or amend the judgment,
under Rule 59; or
(5) for relief under Rule 60.
(b) Entering Judgment.
(1) Without the Court's Direction. Subject to Rule 54(b) and
unless the court orders otherwise, the clerk must, without
awaiting the court's direction, promptly prepare, sign, and
enter the judgment when:
(A) the jury returns a general verdict;
(B) the court awards only costs or a sum certain; or
(C) the court denies all relief.
(2) Court's Approval Required. Subject to Rule 54(b), the
court must promptly approve the form of the judgment, which the
clerk must promptly enter, when:
(A) the jury returns a special verdict or a general
verdict with answers to written questions; or
(B) the court grants other relief not described in
this subdivision (b).
(c) Time of Entry. For purposes of these rules, judgment is entered
at the following times:
(1) if a separate document is not required, when the
judgment is entered in the civil docket under Rule 79(a); or
(2) if a separate document is required, when the judgment is
entered in the civil docket under Rule 79(a) and the earlier of
these events occurs:
(A) it is set out in a separate document; or
(B) 150 days have run from the entry in the civil
docket.
(d) Request for Entry. A party may request that judgment be set out
in a separate document as required by Rule 58(a).
(e) Cost or Fee Awards. Ordinarily, the entry of judgment may not be
delayed, nor the time for appeal extended, in order to tax costs or
award fees. But if a timely motion for attorney's fees is made under
Rule 54(d)(2), the court may act before a notice of appeal has been
filed and become effective to order that the motion have the same effect
under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion
under Rule 59.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 59
. New Trial; Altering or Amending a Judgment______________________
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a
new trial on all or some of the issues -- and to any party -- as
follows:
(A) after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at
law in federal court; or
(B) after a nonjury trial, for any reason for which
a rehearing has heretofore been granted in a suit in
equity in federal court.
(2) Further Action After a Nonjury Trial. After a nonjury
trial, the court may, on motion for a new trial, open the
judgment if one has been entered, take additional testimony,
amend findings of fact and conclusions of law or make new ones,
and direct the entry of a new judgment.
(b) Time to File a Motion for a New Trial. A motion for a new trial
must be filed no later than 10 days after the entry of judgment.
(c) Time to Serve Affidavits. When a motion for a new trial is based
on affidavits, they must be filed with the motion. The opposing party
has 10 days after being served to file opposing affidavits; but that
period may be extended for up to 20 days, either by the court for good
cause or by the parties' stipulation. The court may permit reply
affidavits.
(d) New Trial on the Court's Initiative or for Reasons Not in the
Motion. No later than 10 days after the entry of judgment, the court, on
its own, may order a new trial for any reason that would justify
granting one on a party's motion. After giving the parties notice and an
opportunity to be heard, the court may grant a timely motion for a new
trial for a reason not stated in the motion. In either event, the court
must specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend
a judgment must be filed no later than 10 days after the entry of the
judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 60
. Relief from a Judgment or Order_________________________________
(a) Corrections Based on Clerical Mistakes; Oversights and
Omissions. The court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order,
or other part of the record. The court may do so on motion or on its
own, with or without notice. But after an appeal has been docketed in
the appellate court and while it is pending, such a mistake may be
corrected only with the appellate court's leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a
reasonable time -- and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the date
of the proceeding.
(2) Effect on Finality. The motion does not affect the
judgment's finality or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not limit a court's
power to:
(1) entertain an independent action to relieve a party from
a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. Sec. 1655 to a defendant
who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are abolished: bills of
review, bills in the nature of bills of review, and writs of coram
nobis, coram vobis, and audita querela.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 61
. Harmless Error__________________________________________________
Unless justice requires otherwise, no error in admitting or
excluding evidence -- or any other error by the court or a party -- is
ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order. At
every stage of the proceeding, the court must disregard all errors and
defects that do not affect any party's substantial rights.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 62
. Stay of Proceedings to Enforce a Judgment_______________________
(a) Automatic Stay; Exceptions for Injunctions, Receiverships, and
Patent Accountings. Except as stated in this rule, no execution may
issue on a judgment, nor may proceedings be taken to enforce it, until
10 days have passed after its entry. But unless the court orders
otherwise, the following are not stayed after being entered, even if an
appeal is taken:
(1) an interlocutory or final judgment in an action for an
injunction or a receivership; or
(2) a judgment or order that directs an accounting in an
action for patent infringement.
(b) Stay Pending the Disposition of a Motion. On appropriate terms
for the opposing party's security, the court may stay the execution of a
judgment -- or any proceedings to enforce it -- pending disposition of
any of the following motions:
(1) under Rule 50, for judgment as a matter of law;
(2) under Rule 52(b), to amend the findings or for
additional findings;
(3) under Rule 59, for a new trial or to alter or amend a
judgment; or
(4) under Rule 60, for relief from a judgment or order.
(c) Injunction Pending an Appeal. While an appeal is pending from an
interlocutory order or final judgment that grants, dissolves, or denies
an injunction, the court may suspend, modify, restore, or grant an
injunction on terms for bond or other terms that secure the opposing
party's rights. If the judgment appealed from is rendered by a statutory
three-judge district court, the order must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their
signatures.
(d) Stay with Bond on Appeal. If an appeal is taken, the appellant
may obtain a stay by supersedeas bond, except in an action described in
Rule 62(a)(1) or (2). The bond may be given upon or after filing the
notice of appeal or after obtaining the order allowing the appeal. The
stay takes effect when the court approves the bond.
(e) Stay Without Bond on an Appeal by the United States, Its
Officers, or Its Agencies. The court must not require a bond,
obligation, or other security from the appellant when granting a stay on
an appeal by the United States, its officers, or its agencies or on an
appeal directed by a department of the federal government.
(f) Stay in Favor of a Judgment Debtor Under State Law. If a
judgment is a lien on the judgment debtor's property under the law of
the state where the court is located, the judgment debtor is entitled to
the same stay of execution the state court would give.
(g) Appellate Court's Power Not Limited. This rule does not limit
the power of the appellate court or one of its judges or justices:
(1) to stay proceedings -- or suspend, modify, restore, or
grant an injunction -- while an appeal is pending; or
(2) to issue an order to preserve the status quo or the
effectiveness of the judgment to be entered.
(h) Stay with Multiple Claims or Parties. A court may stay the
enforcement of a final judgment entered under Rule 54(b) until it enters
a later judgment or judgments, and may prescribe terms necessary to
secure the benefit of the stayed judgment for the party in whose favor
it was entered.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 63
. Judge's Inability to Proceed____________________________________
If a judge conducting a hearing or trial is unable to proceed, any
other judge may proceed upon certifying familiarity with the record and
determining that the case may be completed without prejudice to the
parties. In a hearing or a nonjury trial, the successor judge must, at a
party's request, recall any witness whose testimony is material and
disputed and who is available to testify again without undue burden. The
successor judge may also recall any other witness.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Apr. 30, 2007, eff. Dec. 1, 2007.)
TITLE VIII. PROVISIONAL AND FINAL REMEDIES
Rule 64
. Seizing a Person or Property____________________________________
(a) Remedies Under State Law -- In General. At the commencement of
and throughout an action, every remedy is available that, under the law
of the state where the court is located, provides for seizing a person
or property to secure satisfaction of the potential judgment. But a
federal statute governs to the extent it applies.
(b) Specific Kinds of Remedies. The remedies available under this
rule include the following -- however designated and regardless of
whether state procedure requires an independent action:
arrest;
attachment;
garnishment;
replevin;
sequestration; and
other corresponding or equivalent remedies.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 65
. Injunctions and Restraining Orders______________________________
(a) Preliminary Injunction.
(1) Notice. The court may issue a preliminary injunction
only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits.
Before or after beginning the hearing on a motion for a
preliminary injunction, the court may advance the trial on the
merits and consolidate it with the hearing. Even when
consolidation is not ordered, evidence that is received on the
motion and that would be admissible at trial becomes part of the
trial record and need not be repeated at trial. But the court
must preserve any party's right to a jury trial.
(b) Temporary Restraining Order.
(1) Issuing Without Notice. The court may issue a temporary
restraining order without written or oral notice to the adverse
party or its attorney only if:
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it
should not be required.
(2) Contents; Expiration. Every temporary restraining order
issued without notice must state the date and hour it was
issued; describe the injury and state why it is irreparable;
state why the order was issued without notice; and be promptly
filed in the clerk's office and entered in the record. The order
expires at the time after entry -- not to exceed 10 days -- that
the court sets, unless before that time the court, for good
cause, extends it for a like period or the adverse party
consents to a longer extension. The reasons for an extension
must be entered in the record.
(3) Expediting the Preliminary-Injunction Hearing. If the
order is issued without notice, the motion for a preliminary
injunction must be set for hearing at the earliest possible
time, taking precedence over all other matters except hearings
on older matters of the same character. At the hearing, the
party who obtained the order must proceed with the motion; if
the party does not, the court must dissolve the order.
(4) Motion to Dissolve. On 2 days' notice to the party who
obtained the order without notice -- or on shorter notice set by
the court -- the adverse party may appear and move to dissolve
or modify the order. The court must then hear and decide the
motion as promptly as justice requires.
(c) Security. The court may issue a preliminary injunction or a
temporary restraining order only if the movant gives security in an
amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or
restrained. The United States, its officers, and its agencies are not
required to give security.
(d) Contents and Scope of Every Injunction and Restraining Order.
(1) Contents. Every order granting an injunction and every
restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail -- and not by
referring to the complaint or other document -- the act
or acts restrained or required.
(2) Persons Bound. The order binds only the following who
receive actual notice of it by personal service or otherwise:
(A) the parties;
(B) the parties' officers, agents, servants,
employees, and attorneys; and
(C) other persons who are in active concert or
participation with anyone described in Rule 65(d)(2)(A)
or (B).
(e) Other Laws Not Modified. These rules do not modify the
following:
(1) any federal statute relating to temporary restraining
orders or preliminary injunctions in actions affecting employer
and employee;
(2) 28 U.S.C. Sec. 2361, which relates to preliminary
injunctions in actions of interpleader or in the nature of
interpleader; or
(3) 28 U.S.C. Sec. 2284, which relates to actions that must
be heard and decided by a three-judge district court.
(f) Copyright Impoundment. This rule applies to copyright-
impoundment proceedings.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1,
1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 65.1
. Proceedings Against a Surety____________________________________
Whenever these rules (including the Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions) require or allow a
party to give security, and security is given through a bond or other
undertaking with one or more sureties, each surety submits to the
court's jurisdiction and irrevocably appoints the court clerk as its
agent for receiving service of any papers that affect its liability on
the bond or undertaking. The surety's liability may be enforced on
motion without an independent action. The motion and any notice that the
court orders may be served on the court clerk, who must promptly mail a
copy of each to every surety whose address is known.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 66
. Receivers_______________________________________________________
These rules govern an action in which the appointment of a receiver
is sought or a receiver sues or is sued. But the practice in
administering an estate by a receiver or a similar court-appointed
officer must accord with the historical practice in federal courts or
with a local rule. An action in which a receiver has been appointed may
be dismissed only by court order.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 67
. Deposit into Court______________________________________________
(a) Depositing Property. If any part of the relief sought is a money
judgment or the disposition of a sum of money or some other deliverable
thing, a party -- on notice to every other party and by leave of court
-- may deposit with the court all or part of the money or thing, whether
or not that party claims any of it. The depositing party must deliver to
the clerk a copy of the order permitting deposit.
(b) Investing and Withdrawing Funds. Money paid into court under
this rule must be deposited and withdrawn in accordance with 28 U.S.C.
Sec. Sec. 2041 and 2042 and any like statute. The money must be
deposited in an interest-bearing account or invested in a court-
approved, interest-bearing instrument.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug.
1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 68
. Offer of Judgment_______________________________________________
(a) Making an Offer; Judgment on an Accepted Offer. More than 10
days before the trial begins, a party defending against a claim may
serve on an opposing party an offer to allow judgment on specified
terms, with the costs then accrued. If, within 10 days after being
served, the opposing party serves written notice accepting the offer,
either party may then file the offer and notice of acceptance, plus
proof of service. The clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is considered withdrawn,
but it does not preclude a later offer. Evidence of an unaccepted offer
is not admissible except in a proceeding to determine costs.
(c) Offer After Liability Is Determined. When one party's liability
to another has been determined but the extent of liability remains to be
determined by further proceedings, the party held liable may make an
offer of judgment. It must be served within a reasonable time -- but at
least 10 days -- before a hearing to determine the extent of liability.
(d) Paying Costs After an Unaccepted Offer. If the judgment that the
offeree finally obtains is not more favorable than the unaccepted offer,
the offeree must pay the costs incurred after the offer was made.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July
1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 69
. Execution_______________________________________________________
(a) In General.
(1) Money Judgment; Applicable Procedure. A money judgment
is enforced by a writ of execution, unless the court directs
otherwise. The procedure on execution -- and in proceedings
supplementary to and in aid of judgment or execution -- must
accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it applies.
(2) Obtaining Discovery. In aid of the judgment or
execution, the judgment creditor or a successor in interest
whose interest appears of record may obtain discovery from any
person -- including the judgment debtor -- as provided in these
rules or by the procedure of the state where the court is
located.
(b) Against Certain Public Officers. When a judgment has been
entered against a revenue officer in the circumstances stated in 28
U.S.C. Sec. 2006, or against an officer of Congress in the circumstances
stated in 2 U.S.C. Sec. 118, the judgment must be satisfied as those
statutes provide.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July
1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 70
. Enforcing a Judgment for a Specific Act_________________________
(a) Party's Failure to Act; Ordering Another to Act. If a judgment
requires a party to convey land, to deliver a deed or other document, or
to perform any other specific act and the party fails to comply within
the time specified, the court may order the act to be done -- at the
disobedient party's expense -- by another person appointed by the court.
When done, the act has the same effect as if done by the party.
(b) Vesting Title. If the real or personal property is within the
district, the court -- instead of ordering a conveyance -- may enter a
judgment divesting any party's title and vesting it in others. That
judgment has the effect of a legally executed conveyance.
(c) Obtaining a Writ of Attachment or Sequestration. On application
by a party entitled to performance of an act, the clerk must issue a
writ of attachment or sequestration against the disobedient party's
property to compel obedience.
(d) Obtaining a Writ of Execution or Assistance. On application by a
party who obtains a judgment or order for possession, the clerk must
issue a writ of execution or assistance.
(e) Holding in Contempt. The court may also hold the disobedient
party in contempt.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 71
. Enforcing Relief For or Against a Nonparty______________________
When an order grants relief for a nonparty or may be enforced
against a nonparty, the procedure for enforcing the order is the same as
for a party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
TITLE IX. SPECIAL PROCEEDINGS
Rule 71.1
. Condemning Real or Personal Property____________________________
(a) Applicability of Other Rules. These rules govern proceedings to
condemn real and personal property by eminent domain, except as this
rule provides otherwise.
(b) Joinder of Properties. The plaintiff may join separate pieces of
property in a single action, no matter whether they are owned by the
same persons or sought for the same use.
(c) Complaint.
(1) Caption. The complaint must contain a caption as
provided in Rule 10(a). The plaintiff must, however, name as
defendants both the property -- designated generally by kind,
quantity, and location -- and at least one owner of some part of
or interest in the property.
(2) Contents. The complaint must contain a short and plain
statement of the following:
(A) the authority for the taking;
(B) the uses for which the property is to be taken;
(C) a description sufficient to identify the
property;
(D) the interests to be acquired; and
(E) for each piece of property, a designation of
each defendant who has been joined as an owner or owner
of an interest in it.
(3) Parties. When the action commences, the plaintiff need
join as defendants only those persons who have or claim an
interest in the property and whose names are then known. But
before any hearing on compensation, the plaintiff must add as
defendants all those persons who have or claim an interest and
whose names have become known or can be found by a reasonably
diligent search of the records, considering both the property's
character and value and the interests to be acquired. All others
may be made defendants under the designation ``Unknown Owners.''
(4) Procedure. Notice must be served on all defendants as
provided in Rule 71.1(d), whether they were named as defendants
when the action commenced or were added later. A defendant may
answer as provided in Rule 71.1(e). The court, meanwhile, may
order any distribution of a deposit that the facts warrant.
(5) Filing; Additional Copies. In addition to filing the
complaint, the plaintiff must give the clerk at least one copy
for the defendants' use and additional copies at the request of
the clerk or a defendant.
(d) Process.
(1) Delivering Notice to the Clerk. On filing a complaint,
the plaintiff must promptly deliver to the clerk joint or
several notices directed to the named defendants. When adding
defendants, the plaintiff must deliver to the clerk additional
notices directed to the new defendants.
(2) Contents of the Notice.
(A) Main Contents. Each notice must name the court,
the title of the action, and the defendant to whom it is
directed. It must describe the property sufficiently to
identify it, but need not describe any property other
than that to be taken from the named defendant. The
notice must also state:
(i) that the action is to condemn property;
(ii) the interest to be taken;
(iii) the authority for the taking;
(iv) the uses for which the property is to
be taken;
(v) that the defendant may serve an answer
on the plaintiff's attorney within 20 days after
being served with the notice;
(vi) that the failure to so serve an answer
constitutes consent to the taking and to the
court's authority to proceed with the action and
fix the compensation; and
(vii) that a defendant who does not serve an
answer may file a notice of appearance.
(B) Conclusion. The notice must conclude with the
name, telephone number, and e-mail address of the
plaintiff's attorney and an address within the district
in which the action is brought where the attorney may be
served.
(3) Serving the Notice.
(A) Personal Service. When a defendant whose address
is known resides within the United States or a territory
subject to the administrative or judicial jurisdiction
of the United States, personal service of the notice
(without a copy of the complaint) must be made in
accordance with Rule 4.
(B) Service by Publication.
(i) A defendant may be served by publication
only when the plaintiff's attorney files a
certificate stating that the attorney believes
the defendant cannot be personally served,
because after diligent inquiry within the state
where the complaint is filed, the defendant's
place of residence is still unknown or, if
known, that it is beyond the territorial limits
of personal service. Service is then made by
publishing the notice -- once a week for at
least 3 successive weeks -- in a newspaper
published in the county where the property is
located or, if there is no such newspaper, in a
newspaper with general circulation where the
property is located. Before the last
publication, a copy of the notice must also be
mailed to every defendant who cannot be
personally served but whose place of residence
is then known. Unknown owners may be served by
publication in the same manner by a notice
addressed to ``Unknown Owners.''
(ii) Service by publication is complete on
the date of the last publication. The
plaintiff's attorney must prove publication and
mailing by a certificate, attach a printed copy
of the published notice, and mark on the copy
the newspaper's name and the dates of
publication.
(4) Effect of Delivery and Service. Delivering the notice to
the clerk and serving it have the same effect as serving a
summons under Rule 4.
(5) Amending the Notice; Proof of Service and Amending the
Proof. Rule 4(a)(2) governs amending the notice. Rule 4(l)
governs proof of service and amending it.
(e) Appearance or Answer.
(1) Notice of Appearance. A defendant that has no objection
or defense to the taking of its property may serve a notice of
appearance designating the property in which it claims an
interest. The defendant must then be given notice of all later
proceedings affecting the defendant.
(2) Answer. A defendant that has an objection or defense to
the taking must serve an answer within 20 days after being
served with the notice. The answer must:
(A) identify the property in which the defendant
claims an interest;
(B) state the nature and extent of the interest; and
(C) state all the defendant's objections and
defenses to the taking.
(3) Waiver of Other Objections and Defenses; Evidence on
Compensation. A defendant waives all objections and defenses not
stated in its answer. No other pleading or motion asserting an
additional objection or defense is allowed. But at the trial on
compensation, a defendant -- whether or not it has previously
appeared or answered -- may present evidence on the amount of
compensation to be paid and may share in the award.
(f) Amending Pleadings. Without leave of court, the plaintiff may --
as often as it wants -- amend the complaint at any time before the trial
on compensation. But no amendment may be made if it would result in a
dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need
not serve a copy of an amendment, but must serve notice of the filing,
as provided in Rule 5(b), on every affected party who has appeared and,
as provided in Rule 71.1(d), on every affected party who has not
appeared. In addition, the plaintiff must give the clerk at least one
copy of each amendment for the defendants' use, and additional copies at
the request of the clerk or a defendant. A defendant may appear or
answer in the time and manner and with the same effect as provided in
Rule 71.1(e).
(g) Substituting Parties. If a defendant dies, becomes incompetent,
or transfers an interest after being joined, the court may, on motion
and notice of hearing, order that the proper party be substituted.
Service of the motion and notice on a nonparty must be made as provided
in Rule 71.1(d)(3).
(h) Trial of the Issues.
(1) Issues Other Than Compensation; Compensation. In an
action involving eminent domain under federal law, the court
tries all issues, including compensation, except when
compensation must be determined:
(A) by any tribunal specially constituted by a
federal statute to determine compensation; or
(B) if there is no such tribunal, by a jury when a
party demands one within the time to answer or within
any additional time the court sets, unless the court
appoints a commission.
(2) Appointing a Commission; Commission's Powers and Report.
(A) Reasons for Appointing. If a party has demanded
a jury, the court may instead appoint a three-person
commission to determine compensation because of the
character, location, or quantity of the property to be
condemned or for other just reasons.
(B) Alternate Commissioners. The court may appoint
up to two additional persons to serve as alternate
commissioners to hear the case and replace commissioners
who, before a decision is filed, the court finds unable
or disqualified to perform their duties. Once the
commission renders its final decision, the court must
discharge any alternate who has not replaced a
commissioner.
(C) Examining the Prospective Commissioners. Before
making its appointments, the court must advise the
parties of the identity and qualifications of each
prospective commissioner and alternate, and may permit
the parties to examine them. The parties may not suggest
appointees, but for good cause may object to a
prospective commissioner or alternate.
(D) Commission's Powers and Report. A commission has
the powers of a master under Rule 53(c). Its action and
report are determined by a majority. Rule 53(d), (e),
and (f) apply to its action and report.
(i) Dismissal of the Action or a Defendant.
(1) Dismissing the Action.
(A) By the Plaintiff. If no compensation hearing on
a piece of property has begun, and if the plaintiff has
not acquired title or a lesser interest or taken
possession, the plaintiff may, without a court order,
dismiss the action as to that property by filing a
notice of dismissal briefly describing the property.
(B) By Stipulation. Before a judgment is entered
vesting the plaintiff with title or a lesser interest in
or possession of property, the plaintiff and affected
defendants may, without a court order, dismiss the
action in whole or in part by filing a stipulation of
dismissal. And if the parties so stipulate, the court
may vacate a judgment already entered.
(C) By Court Order. At any time before compensation
has been determined and paid, the court may, after a
motion and hearing, dismiss the action as to a piece of
property. But if the plaintiff has already taken title,
a lesser interest, or possession as to any part of it,
the court must award compensation for the title, lesser
interest, or possession taken.
(2) Dismissing a Defendant. The court may at any time
dismiss a defendant who was unnecessarily or improperly joined.
(3) Effect. A dismissal is without prejudice unless
otherwise stated in the notice, stipulation, or court order.
(j) Deposit and Its Distribution.
(1) Deposit. The plaintiff must deposit with the court any
money required by law as a condition to the exercise of eminent
domain and may make a deposit when allowed by statute.
(2) Distribution; Adjusting Distribution. After a deposit,
the court and attorneys must expedite the proceedings so as to
distribute the deposit and to determine and pay compensation. If
the compensation finally awarded to a defendant exceeds the
amount distributed to that defendant, the court must enter
judgment against the plaintiff for the deficiency. If the
compensation awarded to a defendant is less than the amount
distributed to that defendant, the court must enter judgment
against that defendant for the overpayment.
(k) Condemnation Under a State's Power of Eminent Domain. This rule
governs an action involving eminent domain under state law. But if
state law provides for trying an issue by jury -- or for trying the
issue of compensation by jury or commission or both -- that law governs.
(l) Costs. Costs are not subject to Rule 54(d).
(As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963, eff.
July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug.
1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Nov. 18, 1988; Apr. 22, 1993,
eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 30, 2007, eff.
Dec. 1, 2007.)
Rule 72
. Magistrate Judges: Pretrial Order_______________________________
(a) Nondispositive Matters. When a pretrial matter not dispositive
of a party's claim or defense is referred to a magistrate judge to hear
and decide, the magistrate judge must promptly conduct the required
proceedings and, when appropriate, issue a written order stating the
decision. A party may serve and file objections to the order within 10
days after being served with a copy. A party may not assign as error a
defect in the order not timely objected to. The district judge in the
case must consider timely objections and modify or set aside any part of
the order that is clearly erroneous or is contrary to law.
(b) Dispositive Motions and Prisoner Petitions.
(1) Findings and Recommendations. A magistrate judge must
promptly conduct the required proceedings when assigned, without
the parties' consent, to hear a pretrial matter dispositive of a
claim or defense or a prisoner petition challenging the
conditions of confinement. A record must be made of all
evidentiary proceedings and may, at the magistrate judge's
discretion, be made of any other proceedings. The magistrate
judge must enter a recommended disposition, including, if
appropriate, proposed findings of fact. The clerk must promptly
mail a copy to each party.
(2) Objections. Within 10 days after being served with a
copy of the recommended disposition, a party may serve and file
specific written objections to the proposed findings and
recommendations. A party may respond to another party's
objections within 10 days after being served with a copy. Unless
the district judge orders otherwise, the objecting party must
promptly arrange for transcribing the record, or whatever
portions of it the parties agree to or the magistrate judge
considers sufficient.
(3) Resolving Objections. The district judge must determine
de novo any part of the magistrate judge's disposition that has
been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991, eff.
Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 73
. Magistrate Judges: Trial by Consent; Appeal_____________________
(a) Trial by Consent. When authorized under 28 U.S.C. Sec. 636(c), a
magistrate judge may, if all parties consent, conduct a civil action or
proceeding, including a jury or nonjury trial. A record must be made in
accordance with 28 U.S.C. Sec. 636(c)(5).
(b) Consent Procedure.
(1) In General. When a magistrate judge has been designated
to conduct civil actions or proceedings, the clerk must give the
parties written notice of their opportunity to consent under 28
U.S.C. Sec. 636(c). To signify their consent, the parties must
jointly or separately file a statement consenting to the
referral. A district judge or magistrate judge may be informed
of a party's response to the clerk's notice only if all parties
have consented to the referral.
(2) Reminding the Parties About Consenting. A district
judge, magistrate judge, or other court official may remind the
parties of the magistrate judge's availability, but must also
advise them that they are free to withhold consent without
adverse substantive consequences.
(3) Vacating a Referral. On its own for good cause -- or
when a party shows extraordinary circumstances -- the district
judge may vacate a referral to a magistrate judge under this
rule.
(c) Appealing a Judgment. In accordance with 28 U.S.C.
Sec. 636(c)(3), an appeal from a judgment entered at a magistrate
judge's direction may be taken to the court of appeals as would any
other appeal from a district-court judgment.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec.
1, 1997; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 74
. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]_________________
Rule 75
. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]_________________
Rule 76
. [Abrogated (Apr. 11, 1997, eff. Dec. 1, 1997).]_________________
TITLE X. DISTRICT COURTS AND CLERKS: CONDUCTING BUSINESS; ISSUING ORDERS
Rule 77
. Conducting Business; Clerk's Authority; Notice of an Order or
Judgment________________________________________________________________
(a) When Court Is Open. Every district court is considered always
open for filing any paper, issuing and returning process, making a
motion, or entering an order.
(b) Place for Trial and Other Proceedings. Every trial on the merits
must be conducted in open court and, so far as convenient, in a regular
courtroom. Any other act or proceeding may be done or conducted by a
judge in chambers, without the attendance of the clerk or other court
official, and anywhere inside or outside the district. But no hearing --
other than one ex parte -- may be conducted outside the district unless
all the affected parties consent.
(c) Clerk's Office Hours; Clerk's Orders.
(1) Hours. The clerk's office -- with a clerk or deputy on
duty -- must be open during business hours every day except
Saturdays, Sundays, and legal holidays. But a court may, by
local rule or order, require that the office be open for
specified hours on Saturday or a particular legal holiday other
than one listed in Rule 6(a)(4)(A).
(2) Orders. Subject to the court's power to suspend, alter,
or rescind the clerk's action for good cause, the clerk may:
(A) issue process;
(B) enter a default;
(C) enter a default judgment under Rule 55(b)(1);
and
(D) act on any other matter that does not require
the court's action.
(d) Serving Notice of an Order or Judgment.
(1) Service. Immediately after entering an order or
judgment, the clerk must serve notice of the entry, as provided
in Rule 5(b), on each party who is not in default for failing to
appear. The clerk must record the service on the docket. A party
also may serve notice of the entry as provided in Rule 5(b).
(2) Time to Appeal Not Affected by Lack of Notice. Lack of
notice of the entry does not affect the time for appeal or
relieve -- or authorize the court to relieve -- a party for
failing to appeal within the time allowed, except as allowed by
Federal Rule of Appellate Procedure (4)(a).
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1,
1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991;
Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 78
. Hearing Motions; Submission on Briefs___________________________
(a) Providing a Regular Schedule for Oral Hearings. A court may
establish regular times and places for oral hearings on motions.
(b) Providing for Submission on Briefs. By rule or order, the court
may provide for submitting and determining motions on briefs, without
oral hearings.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 79
. Records Kept by the Clerk_______________________________________
(a) Civil Docket.
(1) In General. The clerk must keep a record known as the
``civil docket'' in the form and manner prescribed by the
Director of the Administrative Office of the United States
Courts with the approval of the Judicial Conference of the
United States. The clerk must enter each civil action in the
docket. Actions must be assigned consecutive file numbers, which
must be noted in the docket where the first entry of the action
is made.
(2) Items to be Entered. The following items must be marked
with the file number and entered chronologically in the docket:
(A) papers filed with the clerk;
(B) process issued, and proofs of service or other
returns showing execution; and
(C) appearances, orders, verdicts, and judgments.
(3) Contents of Entries; Jury Trial Demanded. Each entry
must briefly show the nature of the paper filed or writ issued,
the substance of each proof of service or other return, and the
substance and date of entry of each order and judgment. When a
jury trial has been properly demanded or ordered, the clerk must
enter the word ``jury'' in the docket.
(b) Civil Judgments and Orders. The clerk must keep a copy of every
final judgment and appealable order; of every order affecting title to
or a lien on real or personal property; and of any other order that the
court directs to be kept. The clerk must keep these in the form and
manner prescribed by the Director of the Administrative Office of the
United States Courts with the approval of the Judicial Conference of the
United States.
(c) Indexes; Calendars. Under the court's direction, the clerk must:
(1) keep indexes of the docket and of the judgments and
orders described in Rule 79(b); and
(2) prepare calendars of all actions ready for trial,
distinguishing jury trials from nonjury trials.
(d) Other Records. The clerk must keep any other records required by
the Director of the Administrative Office of the United States Courts
with the approval of the Judicial Conference of the United States.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 80
. Stenographic Transcript as Evidence_____________________________
If stenographically reported testimony at a hearing or trial is
admissible in evidence at a later trial, the testimony may be proved by
a transcript certified by the person who reported it.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.
1, 2007.)
TITLE XI. GENERAL PROVISIONS
Rule 81
. Applicability of the Rules in General; Removed Actions__________
(a) Applicability to Particular Proceedings.
(1) Prize Proceedings. These rules do not apply to prize
proceedings in admiralty governed by 10 U.S.C. Sec. Sec. 7651-
7681.
(2) Bankruptcy. These rules apply to bankruptcy proceedings
to the extent provided by the Federal Rules of Bankruptcy
Procedure.
(3) Citizenship. These rules apply to proceedings for
admission to citizenship to the extent that the practice in
those proceedings is not specified in federal statutes and has
previously conformed to the practice in civil actions. The
provisions of 8 U.S.C. Sec. 1451 for service by publication and
for answer apply in proceedings to cancel citizenship
certificates.
(4) Special Writs. These rules apply to proceedings for
habeas corpus and for quo warranto to the extent that the
practice in those proceedings:
(A) is not specified in a federal statute, the Rules
Governing Section 2254 Cases, or the Rules Governing
Section 2255 Cases; and
(B) has previously conformed to the practice in
civil actions.
(5) Proceedings Involving a Subpoena. These rules apply to
proceedings to compel testimony or the production of documents
through a subpoena issued by a United States officer or agency
under a federal statute, except as otherwise provided by
statute, by local rule, or by court order in the proceedings.
(6) Other Proceedings. These rules, to the extent
applicable, govern proceedings under the following laws, except
as these laws provide other procedures:
(A) 7 U.S.C. Sec. Sec. 292, 499g(c), for reviewing
an order of the Secretary of Agriculture;
(B) 9 U.S.C., relating to arbitration;
(C) 15 U.S.C. Sec. 522, for reviewing an order of
the Secretary of the Interior;
(D) 15 U.S.C. Sec. 715d(c), for reviewing an order
denying a certificate of clearance;
(E) 29 U.S.C. Sec. Sec. 159, 160, for enforcing an
order of the National Labor Relations Board;
(F) 33 U.S.C. Sec. Sec. 918, 921, for enforcing or
reviewing a compensation order under the Longshore and
Harbor Workers' Compensation Act; and
(G) 45 U.S.C. Sec. 159, for reviewing an arbitration
award in a railway-labor dispute.
(b) Scire Facias and Mandamus. The writs of scire facias and
mandamus are abolished. Relief previously available through them may be
obtained by appropriate action or motion under these rules.
(c) Removed Actions.
(1) Applicability. These rules apply to a civil action after
it is removed from a state court.
(2) Further Pleading. After removal, repleading is
unnecessary unless the court orders it. A defendant who did not
answer before removal must answer or present other defenses or
objections under these rules within the longest of these
periods:
(A) 20 days after receiving -- through service or
otherwise -- a copy of the initial pleading stating the
claim for relief;
(B) 20 days after being served with the summons for
an initial pleading on file at the time of service; or
(C) 5 days after the notice of removal is filed.
(3) Demand for a Jury Trial.
(A) As Affected by State Law. A party who, before
removal, expressly demanded a jury trial in accordance
with state law need not renew the demand after removal.
If the state law did not require an express demand for a
jury trial, a party need not make one after removal
unless the court orders the parties to do so within a
specified time. The court must so order at a party's
request and may so order on its own. A party who fails
to make a demand when so ordered waives a jury trial.
(B) Under Rule 38. If all necessary pleadings have
been served at the time of removal, a party entitled to
a jury trial under Rule 38 must be given one if the
party serves a demand within 10 days after:
(i) it files a notice of removal; or
(ii) it is served with a notice of removal
filed by another party.
(d) Law Applicable.
(1) State Law. When these rules refer to state law, the term
``law'' includes the state's statutes and the state's judicial
decisions.
(2) District of Columbia. The term ``state'' includes, where
appropriate, the District of Columbia. When these rules provide
for state law to apply, in the District Court for the District
of Columbia:
(A) the law applied in the District governs; and
(B) the term ``federal statute'' includes any Act of
Congress that applies locally to the District.
(As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff. Mar.
19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951, eff. Aug. 1,
1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1,
1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001; Apr.
29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 82
. Jurisdiction and Venue Unaffected_______________________________
These rules do not extend or limit the jurisdiction of the district
courts or the venue of actions in those courts. An admiralty or maritime
claim under Rule 9(h) is not a civil action for purposes of 28 U.S.C.
Sec. Sec. 1391-1392.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July
1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1,
2007.)
Rule 83
. Rules by District Courts; Judge's Directives____________________
(a) Local Rules.
(1) In General. After giving public notice and an
opportunity for comment, a district court, acting by a majority
of its district judges, may adopt and amend rules governing its
practice. A local rule must be consistent with -- but not
duplicate -- federal statutes and rules adopted under 28 U.S.C.
Sec. Sec. 2072 and 2075, and must conform to any uniform
numbering system prescribed by the Judicial Conference of the
United States. A local rule takes effect on the date specified
by the district court and remains in effect unless amended by
the court or abrogated by the judicial council of the circuit.
Copies of rules and amendments must, on their adoption, be
furnished to the judicial council and the Administrative Office
of the United States Courts and be made available to the public.
(2) Requirement of Form. A local rule imposing a requirement
of form must not be enforced in a way that causes a party to
lose any right because of a nonwillful failure to comply.
(b) Procedure When There Is No Controlling Law. A judge may regulate
practice in any manner consistent with federal law, rules adopted under
28 U.S.C. Sec. Sec. 2072 and 2075, and the district's local rules. No
sanction or other disadvantage may be imposed for noncompliance with any
requirement not in federal law, federal rules, or the local rules unless
the alleged violator has been furnished in the particular case with
actual notice of the requirement.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff. Dec.
1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 84
. Forms___________________________________________________________
The forms in the Appendix suffice under these rules and illustrate
the simplicity and brevity that these rules contemplate.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 30, 2007, eff. Dec.
1, 2007.)
Rule 85
. Title___________________________________________________________
These rules may be cited as the Federal Rules of Civil Procedure.
(As amended Apr. 30, 2007, eff. Dec. 1, 2007.)
Rule 86
. Effective Dates_________________________________________________
(a) In General. These rules and any amendments take effect at the
time specified by the Supreme Court, subject to 28 U.S.C. Sec. 2074.
They govern:
(1) proceedings in an action commenced after their effective
date; and
(2) proceedings after that date in an action then pending
unless:
(A) the Supreme Court specifies otherwise; or
(B) the court determines that applying them in a
particular action would be infeasible or work an
injustice.
(b) December 1, 2007 Amendments. If any provision in Rules 1-5.1, 6-
73, or 77-86 conflicts with another law, priority in time for the
purpose of 28 U.S.C. Sec. 2072(b) is not affected by the amendments
taking effect on December 1, 2007.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Apr. 17, 1961, eff. July 19, 1961; Jan. 21 and Mar. 18, 1963,
eff. July 1, 1963; Apr. 30, 2007, eff. Dec. 1, 2007.)
FEDERAL RULES OF CIVIL PROCEDURE
APPENDIX OF FORMS
As added April 30, 2007, effective December 1, 2007
(See Rule 84)
SUPPLEMENTAL RULES FOR ADMIRALTY OR MARITIME CLAIMS AND ASSET
FORFEITURE ACTIONS \1\
---------------------------------------------------------------------------
\1\ Title amended April 12, 2006, effective December 1, 2006.
---------------------------------------------------------------------------
Rule A
. Scope of Rules__________________________________________________
(1) These Supplemental Rules apply to:
(A) the procedure in admiralty and maritime claims within
the meaning of Rule 9(h) with respect to the following remedies:
(i) maritime attachment and garnishment,
(ii) actions in rem,
(iii) possessory, petitory, and partition actions,
and
(iv) actions for exoneration from or limitation of
liability;
(B) forfeiture actions in rem arising from a federal
statute; and
(C) the procedure in statutory condemnation proceedings
analogous to maritime actions in rem, whether within the
admiralty and maritime jurisdiction or not. Except as otherwise
provided, references in these Supplemental Rules to actions in
rem include such analogous statutory condemnation proceedings.
(2) The Federal Rules of Civil Procedure also apply to the foregoing
proceedings except to the extent that they are inconsistent with these
Supplemental Rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 12, 2006, eff.
Dec. 1, 2006.)
Rule B
. In Personam Actions: Attachment and Garnishment_________________
(1) When Available; Complaint, Affidavit, Judicial Authorization,
and Process. In an in personam action:
(a) If a defendant is not found within the district when a
verified complaint praying for attachment and the affidavit
required by Rule B(1)(b) are filed, a verified complaint may
contain a prayer for process to attach the defendant's tangible
or intangible personal property--up to the amount sued for--in
the hands of garnishees named in the process.
(b) The plaintiff or the plaintiff's attorney must sign and
file with the complaint an affidavit stating that, to the
affiant's knowledge, or on information and belief, the defendant
cannot be found within the district. The court must review the
complaint and affidavit and, if the conditions of this Rule B
appear to exist, enter an order so stating and authorizing
process of attachment and garnishment. The clerk may issue
supplemental process enforcing the court's order upon
application without further court order.
(c) If the plaintiff or the plaintiff's attorney certifies
that exigent circumstances make court review impracticable, the
clerk must issue the summons and process of attachment and
garnishment. The plaintiff has the burden in any post-attachment
hearing under Rule E(4)(f) to show that exigent circumstances
existed.
(d)(i) If the property is a vessel or tangible property on
board a vessel, the summons, process, and any supplemental
process must be delivered to the marshal for service.
(ii) If the property is other tangible or intangible
property, the summons, process, and any supplemental process
must be delivered to a person or organization authorized to
serve it, who may be (A) a marshal; (B) someone under contract
with the United States; (C) someone specially appointed by the
court for that purpose; or, (D) in an action brought by the
United States, any officer or employee of the United States.
(e) The plaintiff may invoke state-law remedies under Rule
64 for seizure of person or property for the purpose of securing
satisfaction of the judgment.
(2) Notice to Defendant. No default judgment may be entered except
upon proof--which may be by affidavit--that:
(a) the complaint, summons, and process of attachment or
garnishment have been served on the defendant in a manner
authorized by Rule 4;
(b) the plaintiff or the garnishee has mailed to the
defendant the complaint, summons, and process of attachment or
garnishment, using any form of mail requiring a return receipt;
or
(c) the plaintiff or the garnishee has tried diligently to
give notice of the action to the defendant but could not do so.
(3) Answer.
(a) By Garnishee. The garnishee shall serve an answer,
together with answers to any interrogatories served with the
complaint, within 20 days after service of process upon the
garnishee. Interrogatories to the garnishee may be served with
the complaint without leave of court. If the garnishee refuses
or neglects to answer on oath as to the debts, credits, or
effects of the defendant in the garnishee's hands, or any
interrogatories concerning such debts, credits, and effects that
may be propounded by the plaintiff, the court may award
compulsory process against the garnishee. If the garnishee
admits any debts, credits, or effects, they shall be held in the
garnishee's hands or paid into the registry of the court, and
shall be held in either case subject to the further order of the
court.
(b) By Defendant. The defendant shall serve an answer within
30 days after process has been executed, whether by attachment
of property or service on the garnishee.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000, eff. Dec.
1, 2000; Apr. 25, 2005, eff. Dec. 1, 2005.)
Rule C
. In Rem Actions: Special Provisions______________________________
(1) When Available. An action in rem may be brought:
(a) To enforce any maritime lien;
(b) Whenever a statute of the United States provides for a
maritime action in rem or a proceeding analogous thereto.
Except as otherwise provided by law a party who may proceed in rem
may also, or in the alternative, proceed in personam against any person
who may be liable.
Statutory provisions exempting vessels or other property owned or
possessed by or operated by or for the United States from arrest or
seizure are not affected by this rule. When a statute so provides, an
action against the United States or an instrumentality thereof may
proceed on in rem principles.
(2) Complaint. In an action in rem the complaint must:
(a) be verified;
(b) describe with reasonable particularity the property that
is the subject of the action; and
(c) state that the property is within the district or will
be within the district while the action is pending.
(3) Judicial Authorization and Process.
(a) Arrest Warrant.
(i) The court must review the complaint and any
supporting papers. If the conditions for an in rem
action appear to exist, the court must issue an order
directing the clerk to issue a warrant for the arrest of
the vessel or other property that is the subject of the
action.
(ii) If the plaintiff or the plaintiff's attorney
certifies that exigent circumstances make court review
impracticable, the clerk must promptly issue a summons
and a warrant for the arrest of the vessel or other
property that is the subject of the action. The
plaintiff has the burden in any post-arrest hearing
under Rule E(4)(f) to show that exigent circumstances
existed.
(b) Service.
(i) If the property that is the subject of the
action is a vessel or tangible property on board a
vessel, the warrant and any supplemental process must be
delivered to the marshal for service.
(ii) If the property that is the subject of the
action is other property, tangible or intangible, the
warrant and any supplemental process must be delivered
to a person or organization authorized to enforce it,
who may be: (A) a marshal; (B) someone under contract
with the United States; (C) someone specially appointed
by the court for that purpose; or, (D) in an action
brought by the United States, any officer or employee of
the United States.
(c) Deposit in Court. If the property that is the subject of
the action consists in whole or in part of freight, the proceeds
of property sold, or other intangible property, the clerk must
issue--in addition to the warrant--a summons directing any
person controlling the property to show cause why it should not
be deposited in court to abide the judgment.
(d) Supplemental Process. The clerk may upon application
issue supplemental process to enforce the court's order without
further court order.
(4) Notice. No notice other than execution of process is required
when the property that is the subject of the action has been released
under Rule E(5). If the property is not released within 10 days after
execution, the plaintiff must promptly--or within the time that the
court allows--give public notice of the action and arrest in a newspaper
designated by court order and having general circulation in the
district, but publication may be terminated if the property is released
before publication is completed. The notice must specify the time under
Rule C(6) to file a statement of interest in or right against the seized
property and to answer. This rule does not affect the notice
requirements in an action to foreclose a preferred ship mortgage under
46 U.S.C. Sec. Sec. 31301 et seq., as amended.
(5) Ancillary Process. In any action in rem in which process has
been served as provided by this rule, if any part of the property that
is the subject of the action has not been brought within the control of
the court because it has been removed or sold, or because it is
intangible property in the hands of a person who has not been served
with process, the court may, on motion, order any person having
possession or control of such property or its proceeds to show cause why
it should not be delivered into the custody of the marshal or other
person or organization having a warrant for the arrest of the property,
or paid into court to abide the judgment; and, after hearing, the court
may enter such judgment as law and justice may require.
(6) Responsive Pleading; Interrogatories.
(a) Statement of Interest; Answer. In an action in rem:
(i) a person who asserts a right of possession or
any ownership interest in the property that is the
subject of the action must file a verified statement of
right or interest:
(A) within 10 days after the execution of
process, or
(B) within the time that the court allows;
(ii) the statement of right or interest must
describe the interest in the property that supports the
person's demand for its restitution or right to defend
the action;
(iii) an agent, bailee, or attorney must state the
authority to file a statement of right or interest on
behalf of another; and
(iv) a person who asserts a right of possession or
any ownership interest must serve an answer within 20
days after filing the statement of interest or right.
(b) Interrogatories. Interrogatories may be served with the
complaint in an in rem action without leave of court. Answers to
the interrogatories must be served with the answer to the
complaint.
(As added Feb. 28, 1966; eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 12, 2006, eff. Dec. 1,
2006; Apr. 23, 2008, eff. Dec. 1, 2008.)
Rule D
. Possessory, Petitory, and Partition Actions_____________________
In all actions for possession, partition, and to try title
maintainable according to the course of the admiralty practice with
respect to a vessel, in all actions so maintainable with respect to the
possession of cargo or other maritime property, and in all actions by
one or more part owners against the others to obtain security for the
return of the vessel from any voyage undertaken without their consent,
or by one or more part owners against the others to obtain possession of
the vessel for any voyage on giving security for its safe return, the
process shall be by a warrant of arrest of the vessel, cargo, or other
property, and by notice in the manner provided by Rule B(2) to the
adverse party or parties.
(As added Feb. 28, 1966, eff. July 1, 1966.)
Rule E
. Actions in Rem and Quasi in Rem: General Provisions_____________
(1) Applicability. Except as otherwise provided, this rule applies
to actions in personam with process of maritime attachment and
garnishment, actions in rem, and petitory, possessory, and partition
actions, supplementing Rules B, C, and D.
(2) Complaint; Security.
(a) Complaint. In actions to which this rule is applicable
the complaint shall state the circumstances from which the claim
arises with such particularity that the defendant or claimant
will be able, without moving for a more definite statement, to
commence an investigation of the facts and to frame a responsive
pleading.
(b) Security for Costs. Subject to the provisions of Rule
54(d) and of relevant statutes, the court may, on the filing of
the complaint or on the appearance of any defendant, claimant,
or any other party, or at any later time, require the plaintiff,
defendant, claimant, or other party to give security, or
additional security, in such sum as the court shall direct to
pay all costs and expenses that shall be awarded against the
party by any interlocutory order or by the final judgment, or on
appeal by any appellate court.
(3) Process.
(a) In admiralty and maritime proceedings process in rem or
of maritime attachment and garnishment may be served only within
the district.
(b) Issuance and Delivery. Issuance and delivery of process
in rem, or of maritime attachment and garnishment, shall be held
in abeyance if the plaintiff so requests.
(4) Execution of Process; Marshal's Return; Custody of Property;
Procedures for Release.
(a) In General. Upon issuance and delivery of the process,
or, in the case of summons with process of attachment and
garnishment, when it appears that the defendant cannot be found
within the district, the marshal or other person or organization
having a warrant shall forthwith execute the process in
accordance with this subdivision (4), making due and prompt
return.
(b) Tangible Property. If tangible property is to be
attached or arrested, the marshal or other person or
organization having the warrant shall take it into the marshal's
possession for safe custody. If the character or situation of
the property is such that the taking of actual possession is
impracticable, the marshal or other person executing the process
shall affix a copy thereof to the property in a conspicuous
place and leave a copy of the complaint and process with the
person having possession or the person's agent. In furtherance
of the marshal's custody of any vessel the marshal is authorized
to make a written request to the collector of customs not to
grant clearance to such vessel until notified by the marshal or
deputy marshal or by the clerk that the vessel has been released
in accordance with these rules.
(c) Intangible Property. If intangible property is to be
attached or arrested the marshal or other person or organization
having the warrant shall execute the process by leaving with the
garnishee or other obligor a copy of the complaint and process
requiring the garnishee or other obligor to answer as provided
in Rules B(3)(a) and C(6); or the marshal may accept for payment
into the registry of the court the amount owed to the extent of
the amount claimed by the plaintiff with interest and costs, in
which event the garnishee or other obligor shall not be required
to answer unless alias process shall be served.
(d) Directions With Respect to Property in Custody. The
marshal or other person or organization having the warrant may
at any time apply to the court for directions with respect to
property that has been attached or arrested, and shall give
notice of such application to any or all of the parties as the
court may direct.
(e) Expenses of Seizing and Keeping Property; Deposit. These
rules do not alter the provisions of Title 28, U.S.C.,
Sec. 1921, as amended, relative to the expenses of seizing and
keeping property attached or arrested and to the requirement of
deposits to cover such expenses.
(f) Procedure for Release From Arrest or Attachment.
Whenever property is arrested or attached, any person claiming
an interest in it shall be entitled to a prompt hearing at which
the plaintiff shall be required to show why the arrest or
attachment should not be vacated or other relief granted
consistent with these rules. This subdivision shall have no
application to suits for seamen's wages when process is issued
upon a certification of sufficient cause filed pursuant to Title
46, U.S.C. Sec. Sec. 603 and 604 \2\ or to actions by the United
States for forfeitures for violation of any statute of the
United States.
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\2\ Repealed by Pub. L. 98-89, Sec. 4(b), Aug. 26, 1983, 97 Stat.
600, section 1 of which enacted Title 46, Shipping.
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(5) Release of Property.
(a) Special Bond. Whenever process of maritime attachment
and garnishment or process in rem is issued the execution of
such process shall be stayed, or the property released, on the
giving of security, to be approved by the court or clerk, or by
stipulation of the parties, conditioned to answer the judgment
of the court or of any appellate court. The parties may
stipulate the amount and nature of such security. In the event
of the inability or refusal of the parties so to stipulate the
court shall fix the principal sum of the bond or stipulation at
an amount sufficient to cover the amount of the plaintiff's
claim fairly stated with accrued interest and costs; but the
principal sum shall in no event exceed (i) twice the amount of
the plaintiff's claim or (ii) the value of the property on due
appraisement, whichever is smaller. The bond or stipulation
shall be conditioned for the payment of the principal sum and
interest thereon at 6 per cent per annum.
(b) General Bond. The owner of any vessel may file a general
bond or stipulation, with sufficient surety, to be approved by
the court, conditioned to answer the judgment of such court in
all or any actions that may be brought thereafter in such court
in which the vessel is attached or arrested. Thereupon the
execution of all such process against such vessel shall be
stayed so long as the amount secured by such bond or stipulation
is at least double the aggregate amount claimed by plaintiffs in
all actions begun and pending in which such vessel has been
attached or arrested. Judgments and remedies may be had on such
bond or stipulation as if a special bond or stipulation had been
filed in each of such actions. The district court may make
necessary orders to carry this rule into effect, particularly as
to the giving of proper notice of any action against or
attachment of a vessel for which a general bond has been filed.
Such bond or stipulation shall be indorsed by the clerk with a
minute of the actions wherein process is so stayed. Further
security may be required by the court at any time.
If a special bond or stipulation is given in a particular
case, the liability on the general bond or stipulation shall
cease as to that case.
(c) Release by Consent or Stipulation; Order of Court or
Clerk; Costs. Any vessel, cargo, or other property in the
custody of the marshal or other person or organization having
the warrant may be released forthwith upon the marshal's
acceptance and approval of a stipulation, bond, or other
security, signed by the party on whose behalf the property is
detained or the party's attorney and expressly authorizing such
release, if all costs and charges of the court and its officers
shall have first been paid. Otherwise no property in the custody
of the marshal, other person or organization having the warrant,
or other officer of the court shall be released without an order
of the court; but such order may be entered as of course by the
clerk, upon the giving of approved security as provided by law
and these rules, or upon the dismissal or discontinuance of the
action; but the marshal or other person or organization having
the warrant shall not deliver any property so released until the
costs and charges of the officers of the court shall first have
been paid.
(d) Possessory, Petitory, and Partition Actions. The
foregoing provisions of this subdivision (5) do not apply to
petitory, possessory, and partition actions. In such cases the
property arrested shall be released only by order of the court,
on such terms and conditions and on the giving of such security
as the court may require.
(6) Reduction or Impairment of Security. Whenever security is taken
the court may, on motion and hearing, for good cause shown, reduce the
amount of security given; and if the surety shall be or become
insufficient, new or additional sureties may be required on motion and
hearing.
(7) Security on Counterclaim.
(a) When a person who has given security for damages in the
original action asserts a counterclaim that arises from the
transaction or occurrence that is the subject of the original
action, a plaintiff for whose benefit the security has been
given must give security for damages demanded in the
counterclaim unless the court, for cause shown, directs
otherwise. Proceedings on the original claim must be stayed
until this security is given, unless the court directs
otherwise.
(b) The plaintiff is required to give security under Rule
E(7)(a) when the United States or its corporate instrumentality
counterclaims and would have been required to give security to
respond in damages if a private party but is relieved by law
from giving security.
(8) Restricted Appearance. An appearance to defend against an
admiralty and maritime claim with respect to which there has issued
process in rem, or process of attachment and garnishment, may be
expressly restricted to the defense of such claim, and in that event is
not an appearance for the purposes of any other claim with respect to
which such process is not available or has not been served.
(9) Disposition of Property; Sales.
(a) Interlocutory Sales; Delivery.
(i) On application of a party, the marshal, or other
person having custody of the property, the court may
order all or part of the property sold--with the sales
proceeds, or as much of them as will satisfy the
judgment, paid into court to await further orders of the
court--if:
(A) the attached or arrested property is
perishable, or liable to deterioration, decay,
or injury by being detained in custody pending
the action;
(B) the expense of keeping the property is
excessive or disproportionate; or
(C) there is an unreasonable delay in
securing release of the property.
(ii) In the circumstances described in Rule
E(9)(a)(i), the court, on motion by a defendant or a
person filing a statement of interest or right under
Rule C(6), may order that the property, rather than
being sold, be delivered to the movant upon giving
security under these rules.
(b) Sales, Proceeds. All sales of property shall be made by
the marshal or a deputy marshal, or by other person or
organization having the warrant, or by any other person assigned
by the court where the marshal or other person or organization
having the warrant is a party in interest; and the proceeds of
sale shall be forthwith paid into the registry of the court to
be disposed of according to law.
(10) Preservation of Property. When the owner or another person
remains in possession of property attached or arrested under the
provisions of Rule E(4)(b) that permit execution of process without
taking actual possession, the court, on a party's motion or on its own,
may enter any order necessary to preserve the property and to prevent
its removal.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985, eff.
Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1,
2006.)
Rule F
. Limitation of Liability_________________________________________
(1) Time for Filing Complaint; Security. Not later than six months
after receipt of a claim in writing, any vessel owner may file a
complaint in the appropriate district court, as provided in subdivision
(9) of this rule, for limitation of liability pursuant to statute. The
owner (a) shall deposit with the court, for the benefit of claimants, a
sum equal to the amount or value of the owner's interest in the vessel
and pending freight, or approved security therefor, and in addition such
sums, or approved security therefor, as the court may from time to time
fix as necessary to carry out the provisions of the statutes as amended;
or (b) at the owner's option shall transfer to a trustee to be appointed
by the court, for the benefit of claimants, the owner's interest in the
vessel and pending freight, together with such sums, or approved
security therefor, as the court may from time to time fix as necessary
to carry out the provisions of the statutes as amended. The plaintiff
shall also give security for costs and, if the plaintiff elects to give
security, for interest at the rate of 6 percent per annum from the date
of the security.
(2) Complaint. The complaint shall set forth the facts on the basis
of which the right to limit liability is asserted and all facts
necessary to enable the court to determine the amount to which the
owner's liability shall be limited. The complaint may demand exoneration
from as well as limitation of liability. It shall state the voyage if
any, on which the demands sought to be limited arose, with the date and
place of its termination; the amount of all demands including all
unsatisfied liens or claims of lien, in contract or in tort or
otherwise, arising on that voyage, so far as known to the plaintiff, and
what actions and proceedings, if any, are pending thereon; whether the
vessel was damaged, lost, or abandoned, and, if so, when and where; the
value of the vessel at the close of the voyage or, in case of wreck, the
value of her wreckage, strippings, or proceeds, if any, and where and in
whose possession they are; and the amount of any pending freight
recovered or recoverable. If the plaintiff elects to transfer the
plaintiff's interest in the vessel to a trustee, the complaint must
further show any prior paramount liens thereon, and what voyages or
trips, if any, she has made since the voyage or trip on which the claims
sought to be limited arose, and any existing liens arising upon any such
subsequent voyage or trip, with the amounts and causes thereof, and the
names and addresses of the lienors, so far as known; and whether the
vessel sustained any injury upon or by reason of such subsequent voyage
or trip.
(3) Claims Against Owner; Injunction. Upon compliance by the owner
with the requirements of subdivision (1) of this rule all claims and
proceedings against the owner or the owner's property with respect to
the matter in question shall cease. On application of the plaintiff the
court shall enjoin the further prosecution of any action or proceeding
against the plaintiff or the plaintiff's property with respect to any
claim subject to limitation in the action.
(4) Notice to Claimants. Upon the owner's compliance with
subdivision (1) of this rule the court shall issue a notice to all
persons asserting claims with respect to which the complaint seeks
limitation, admonishing them to file their respective claims with the
clerk of the court and to serve on the attorneys for the plaintiff a
copy thereof on or before a date to be named in the notice. The date so
fixed shall not be less than 30 days after issuance of the notice. For
cause shown, the court may enlarge the time within which claims may be
filed. The notice shall be published in such newspaper or newspapers as
the court may direct once a week for four successive weeks prior to the
date fixed for the filing of claims. The plaintiff not later than the
day of second publication shall also mail a copy of the notice to every
person known to have made any claim against the vessel or the plaintiff
arising out of the voyage or trip on which the claims sought to be
limited arose. In cases involving death a copy of such notice shall be
mailed to the decedent at the decedent's last known address, and also to
any person who shall be known to have made any claim on account of such
death.
(5) Claims and Answer. Claims shall be filed and served on or before
the date specified in the notice provided for in subdivision (4) of this
rule. Each claim shall specify the facts upon which the claimant relies
in support of the claim, the items thereof, and the dates on which the
same accrued. If a claimant desires to contest either the right to
exoneration from or the right to limitation of liability the claimant
shall file and serve an answer to the complaint unless the claim has
included an answer.
(6) Information To Be Given Claimants. Within 30 days after the date
specified in the notice for filing claims, or within such time as the
court thereafter may allow, the plaintiff shall mail to the attorney for
each claimant (or if the claimant has no attorney to the claimant) a
list setting forth (a) the name of each claimant, (b) the name and
address of the claimant's attorney (if the claimant is known to have
one), (c) the nature of the claim, i.e., whether property loss, property
damage, death, personal injury etc., and (d) the amount thereof.
(7) Insufficiency of Fund or Security. Any claimant may by motion
demand that the funds deposited in court or the security given by the
plaintiff be increased on the ground that they are less than the value
of the plaintiff's interest in the vessel and pending freight. Thereupon
the court shall cause due appraisement to be made of the value of the
plaintiff's interest in the vessel and pending freight; and if the court
finds that the deposit or security is either insufficient or excessive
it shall order its increase or reduction. In like manner any claimant
may demand that the deposit or security be increased on the ground that
it is insufficient to carry out the provisions of the statutes relating
to claims in respect of loss of life or bodily injury; and, after notice
and hearing, the court may similarly order that the deposit or security
be increased or reduced.
(8) Objections to Claims: Distribution of Fund. Any interested party
may question or controvert any claim without filing an objection
thereto. Upon determination of liability the fund deposited or secured,
or the proceeds of the vessel and pending freight, shall be divided pro
rata, subject to all relevant provisions of law, among the several
claimants in proportion to the amounts of their respective claims, duly
proved, saving, however, to all parties any priority to which they may
be legally entitled.
(9) Venue; Transfer. The complaint shall be filed in any district in
which the vessel has been attached or arrested to answer for any claim
with respect to which the plaintiff seeks to limit liability; or, if the
vessel has not been attached or arrested, then in any district in which
the owner has been sued with respect to any such claim. When the vessel
has not been attached or arrested to answer the matters aforesaid, and
suit has not been commenced against the owner, the proceedings may be
had in the district in which the vessel may be, but if the vessel is not
within any district and no suit has been commenced in any district, then
the complaint may be filed in any district. For the convenience of
parties and witnesses, in the interest of justice, the court may
transfer the action to any district; if venue is wrongly laid the court
shall dismiss or, if it be in the interest of justice, transfer the
action to any district in which it could have been brought. If the
vessel shall have been sold, the proceeds shall represent the vessel for
the purposes of these rules.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987, eff.
Aug. 1, 1987.)
Rule G
. Forfeiture Actions In Rem_______________________________________
(1) Scope. This rule governs a forfeiture action in rem arising from
a federal statute. To the extent that this rule does not address an
issue, Supplemental Rules C and E and the Federal Rules of Civil
Procedure also apply.
(2) Complaint. The complaint must:
(a) be verified;
(b) state the grounds for subject-matter jurisdiction, in
rem jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when any
seizure occurred and--if different--its location when the action
is filed;
(e) identify the statute under which the forfeiture action
is brought; and
(f) state sufficiently detailed facts to support a
reasonable belief that the government will be able to meet its
burden of proof at trial.
(3) Judicial Authorization and Process.
(a) Real Property. If the defendant is real property, the
government must proceed under 18 U.S.C. Sec. 985.
(b) Other Property; Arrest Warrant. If the defendant is not
real property:
(i) the clerk must issue a warrant to arrest the
property if it is in the government's possession,
custody, or control;
(ii) the court--on finding probable cause--must
issue a warrant to arrest the property if it is not in
the government's possession, custody, or control and is
not subject to a judicial restraining order; and
(iii) a warrant is not necessary if the property is
subject to a judicial restraining order.
(c) Execution of Process.
(i) The warrant and any supplemental process must be
delivered to a person or organization authorized to
execute it, who may be: (A) a marshal or any other
United States officer or employee; (B) someone under
contact with the United States; or (C) someone specially
appointed by the court for that purpose.
(ii) The authorized person or organization must
execute the warrant and any supplemental process on
property in the United States as soon as practicable
unless:
(A) the property is in the government's
possession, custody, or control; or
(B) the court orders a different time when
the complaint is under seal, the action is
stayed before the warrant and supplemental
process are executed, or the court finds other
good cause.
(iii) The warrant and any supplemental process may
be executed within the district or, when authorized by
statute, outside the district.
(iv) If executing a warrant on property outside the
United States is required, the warrant may be
transmitted to an appropriate authority for serving
process where the property is located.
(4) Notice.
(a) Notice by Publication.
(i) When Publication Is Required. A judgment of
forfeiture may be entered only if the government has
published notice of the action within a reasonable time
after filing the complaint or at a time the court
orders. But notice need not be published if:
(A) the defendant property is worth less
than $1,000 and direct notice is sent under Rule
G(4)(b) to every person the government can
reasonably identify as a potential claimant; or
(B) the court finds that the cost of
publication exceeds the property's value and
that other means of notice would satisfy due
process.
(ii) Content of the Notice. Unless the court orders
otherwise, the notice must:
(A) describe the property with reasonable
particularity;
(B) state the times under Rule G(5) to file
a claim and to answer; and
(C) name the government attorney to be
served with the claim and answer.
(iii) Frequency of Publication. Published notice
must appear:
(A) once a week for three consecutive weeks;
or
(B) only once if, before the action was
filed, notice of nonjudicial forfeiture of the
same property was published on an official
internet government forfeiture site for at least
30 consecutive days, or in a newspaper of
general circulation for three consecutive weeks
in a district where publication is authorized
under Rule G(4)(a)(iv).
(iv) Means of Publication. The government should
select from the following options a means of publication
reasonably calculated to notify potential claimants of
the action:
(A) if the property is in the United States,
publication in a newspaper generally circulated
in the district where the action is filed, where
the property was seized, or where property that
was not seized is located;
(B) if the property is outside the United
States, publication in a newspaper generally
circulated in a district where the action is
filed, in a newspaper generally circulated in
the country where the property is located, or in
legal notices published and generally circulated
in the country where the property is located; or
(C) instead of (A) or (B), posting a notice
on an official internet government forfeiture
site for at least 30 consecutive days.
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send
notice of the action and a copy of the complaint to any
person who reasonably appears to be a potential claimant
on the facts known to the government before the end of
the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:
(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least
35 days after the notice is sent;
(C) that an answer or a motion under Rule 12
must be filed no later than 20 days after filing
the claim; and
(D) the name of the government attorney to
be served with the claim and answer.
(iii) Sending Notice.
(A) The notice must be sent by means
reasonably calculated to reach the potential
claimant.
(B) Notice may be sent to the potential
claimant or to the attorney representing the
potential claimant with respect to the seizure
of the property or in a related investigation,
administrative forfeiture proceeding, or
criminal case.
(C) Notice sent to a potential claimant who
is incarcerated must be sent to the place of
incarceration.
(D) Notice to a person arrested in
connection with an offense giving rise to the
forfeiture who is not incarcerated when notice
is sent may be sent to the address that person
last gave to the agency that arrested or
released the person.
(E) Notice to a person from whom the
property was seized who is not incarcerated when
notice is sent may be sent to the last address
that person gave to the agency that seized the
property.
(iv) When Notice Is Sent. Notice by the following
means is sent on the date when it is placed in the mail,
delivered to a commercial carrier, or sent by electronic
mail.
(v) Actual Notice. A potential claimant who had
actual notice of a forfeiture action may not oppose or
seek relief from forfeiture because of the government's
failure to send the required notice.
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the
defendant property may contest the forfeiture by filing
a claim in the court where the action is pending. The
claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the
claimant's interest in the property;
(C) be signed by the claimant under penalty
of perjury; and
(D) be served on the government attorney
designated under Rule G(4)(a)(ii)(C) or
(b)(ii)(D).
(ii) Unless the court for good cause sets a
different time, the claim must be filed:
(A) by the time stated in a direct notice
sent under Rule G(4)(b);
(B) if notice was published but direct
notice was not sent to the claimant or the
claimant's attorney, no later than 30 days after
final publication of newspaper notice or legal
notice under Rule G(4)(a) or no later than 60
days after the first day of publication on an
official internet government forfeiture site; or
(C) if notice was not published and direct
notice was not sent to the claimant or the
claimant's attorney:
(1) if the property was in the government's possession, custody, or control
when the complaint was filed, no later than 60 days after the filing, not
counting any time when the complaint was under seal or when the action was
stayed before execution of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's possession, custody, or
control when the complaint was filed, no later than 60 days after the
government complied with 18 U.S.C. Sec. 985(c) as to real property, or 60
days after process was executed on the property under Rule G(3).
(iii) A claim filed by a person asserting an
interest as a bailee must identify the bailor, and if
filed on the bailor's behalf must state the authority to
do so.
(b) Answer. A claimant must serve and file an answer to the
complaint or a motion under Rule 12 within 20 days after filing
the claim. A claimant waives an objection to in rem jurisdiction
or to venue if the objection is not made by motion or stated in
the answer.
(6) Special Interrogatories.
(a) Time and Scope. The government may serve special
interrogatories limited to the claimant's identity and
relationship to the defendant property without the court's leave
at any time after the claim is filed and before discovery is
closed. But if the claimant serves a motion to dismiss the
action, the government must serve the interrogatories within 20
days after the motion is served.
(b) Answers or Objections. Answers or objections to these
interrogatories must be served within 20 days after the
interrogatories are served.
(c) Government's Response Deferred. The government need not
respond to a claimant's motion to dismiss the action under Rule
G(8)(b) until 20 days after the claimant has answered these
interrogatories.
(7) Preserving, Preventing Criminal Use, and Disposing of Property;
Sales.
(a) Preserving and Preventing Criminal Use of Property. When
the government does not have actual possession of the defendant
property the court, on motion or on its own, may enter any order
necessary to preserve the property, to prevent its removal or
encumbrance, or to prevent its use in a criminal offense.
(b) Interlocutory Sale or Delivery.
(i) Order to Sell. On motion by a party or a person
having custody of the property, the court may order all
or part of the property sold if:
(A) the property is perishable or at risk of
deterioration, decay, or injury by being
detained in custody pending the action;
(B) the expense of keeping the property is
excessive or is disproportionate to its fair
market value;
(C) the property is subject to a mortgage or
to taxes on which the owner is in default; or
(D) the court finds other good cause.
(ii) Who Makes the Sale. A sale must be made by a
United States agency that has authority to sell the
property, by the agency's contractor, or by any person
the court designates.
(iii) Sale Procedures. The sale is governed by 28
U.S.C. Sec. Sec. 2001, 2002, and 2004, unless all
parties, with the court's approval, agree to the sale,
aspects of the sale, or different procedures.
(iv) Sale Proceeds. Sale proceeds are a substitute
res subject to forfeiture in place of the property that
was sold. The proceeds must be held in an interest-
bearing account maintained by the United States pending
the conclusion of the forfeiture action.
(v) Delivery on a Claimant's Motion. The court may
order that the property be delivered to the claimant
pending the conclusion of the action if the claimant
shows circumstances that would permit sale under Rule
G(7)(b)(i) and gives security under these rules.
(c) Disposing of Forfeited Property. Upon entry of a
forfeiture judgment, the property or proceeds from selling the
property must be disposed of as provided by law.
(8) Motions.
(a) Motion To Suppress Use of the Property as Evidence. If
the defendant property was seized, a party with standing to
contest the lawfulness of the seizure may move to suppress use
of the property as evidence. Suppression does not affect
forfeiture of the property based on independently derived
evidence.
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest
forfeiture may move to dismiss the action under Rule
12(b).
(ii) In an action governed by 18 U.S.C.
Sec. 983(a)(3)(D) the complaint may not be dismissed on
the ground that the government did not have adequate
evidence at the time the complaint was filed to
establish the forfeitability of the property. The
sufficiency of the complaint is governed by Rule G(2).
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may
move to strike a claim or answer:
(A) for failing to comply with Rule G(5) or
(6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the
claimant to dismiss the action; and
(B) may be presented as a motion for
judgment on the pleadings or as a motion to
determine after a hearing or by summary judgment
whether the claimant can carry the burden of
establishing standing by a preponderance of the
evidence.
(d) Petition To Release Property.
(i) If a United States agency or an agency's
contractor holds property for judicial or nonjudicial
forfeiture under a statute governed by 18 U.S.C.
Sec. 983(f), a person who has filed a claim to the
property may petition for its release under Sec. 983(f).
(ii) If a petition for release is filed before a
judicial forfeiture action is filed against the
property, the petition may be filed either in the
district where the property was seized or in the
district where a warrant to seize the property issued.
If a judicial forfeiture action against the property is
later filed in another district--or if the government
shows that the action will be filed in another
district--the petition may be transferred to that
district under 28 U.S.C. Sec. 1404.
(e) Excessive Fines. A claimant may seek to mitigate a
forfeiture under the Excessive Fines Clause of the Eighth
Amendment by motion for summary judgment or by motion made after
entry of a forfeiture judgment if:
(i) the claimant has pleaded the defense under Rule
8; and
(ii) the parties have had the opportunity to conduct
civil discovery on the defense.
(9) Trial. Trial is to the court unless any party demands trial by
jury under Rule 38.
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)